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Update, February 13, 2:10 pm:
For another view similar to the one I have outlined below to the effect that Trump's Muslim ban and stepped up deportation raids could just be the beginning of a much wider program of limiting immigration from non-white areas of the world (let's not kid ourselves - Trump is not likely to be interested in cutting off immigration from places such as Russia, Slovenia and Western Europe). see Greg Sargent writing in the Washington Post on February 13:
Trump's reign of fear may soon get a whole lot worse. Here's what to look for.
(I don't have a link - please use Google to access.)
My original comment follows:
In its February 9 order denying the Justice Department's appeal from a federal District Court's order temporarily blocking Donald Trump's executive order barring entry to the US by citizens of seven Muslim countries and by refugees from all over the world, the 9th Circuit Court of Appeals did more than decide that citizens of the banned countries, and refugees from everywhere, who had been granted or were eligible for legal visas could continue to come to the United States.
The Court also upheld the principles of democracy and separation of powers over America's immigration system, and, at least for the time being, blocked America's disturbing march toward one-man rule over all aspects of our government and society that has been in evidence since our change of administration on January 20, 2017.
But first, let us take up a question which has caused a great deal of comment, namely whether Trump's January 27 order barring almost 200 million citizens of seven overwhelmingly Muslim countries in the Middle East and Africa in the purported interests of "National Security" is a "Muslim Ban" or not.
At the outset, playing around with words in order to make them mean anything one wants to is a very old intellectual game which has been around ever since Socrates spoke and Plato wrote about the absurdities of the Sophists, whose spirit is alive and well today in the arguments of those who would like to pretend that Trump's Muslim Ban is not really a Muslim Ban. Let's look at those arguments.
First, it is claimed that Trump's order is not really directed against Muslims oer se, but only against citizens of certain named Muslim countries amounting to "only" an estimated 15 percent of the total estimated 1.6 billion Muslims in the world.
If numbers or percentages of targeted people belonging to a certain ethnic or religious group are the test of whether that group as a whole is being discriminated against, than one could just as easily argue that a hypothetical ban on immigration to the US by citizens of Israel would not really be aimed against Jews, since more of the world's Jews live outside Israel than in Israel (according to the Pew Research Center - see Google) and Jewish citizens of countries other than Israel would not be affected by the ban.
One has to doubt whether such an argument would be very persuasive among people who are not already committed anti-Semites.
Even more absurdly, one could argue that President Franklin Roosevelt's infamous WWII Japanese-American internment order was not really aimed against people of Japanese ancestry specifically, because it affected only people of Japanese ancestry living on the West Coast, not in other parts of the United States.
One has to wonder how long any professor of American history who maintained such a view would remain in his or her job.
Most absurdly of all, one could even argue that the notorious late 19th century Chinese exclusion laws were not really directed against Chinese as an ethnic group because the laws did not apply to all citizens of China. Under those laws, only Chinese "laborers" were banned from entering the United States, not Chinese "merchants".
Another variation of this argument that the Sophists would no doubt have been proud of was that Trump's ban against the seven countries citizens was not only directed against Muslims, because, if one looks hard enough, one might be able to find a few Christians or Jews living in those countries.
To be sure, this claim may have some "merit" - Wikipedia states, for example, that there are currently 3,000 Christians and 50 Jews in Yemen - together amounting to one hundredth of one per cent of the total population!
One can only imagine Donald Trump reminding his top adviser Stephen Bannon, who has claimed that the West (i.e. Europe and America) is in a "War of Civilizations" against the Muslim world, how important it is to make sure that this tiny number of Christians and Jews are also kept out of the United States, along with the 99.99 percent of the population of Yemen who are Muslims.
Admittedly, Yemen may be a bit out of the way geographically. A major regional power on the banned list such as Iran is more religiously diverse. "Only" 99.4 percent of Iranians are Muslims, again according to Wikipedia, rather than 99.99 percent, as in Yemen.
There is also a more sophisticated argument (no pun intended, of course) which has been put forth in some quarters to the effect that the seven Muslim countries affected by Trump's ban were previously identified by Congress and President Obama as countries which were having problems with or affected by terrorist organizations. See INA Section 217(a)(12)
But this argument overlooks the fact that this statute was enacted only for the limited purpose of requiring citizens of visa waiver countries who had visited the named countries to apply for visas before entering the US.
Nothing in that law or in Obama's presidential order relating to that law contemplated the drastic measure of banning almost 200 million people, more than 99 percent of whom just happen to be Muslims, from entering the United States without any individual showing that admitting any one of them would be detrimental to America's national interest.
True enough, the 9th Circuit, in its February 9 order, did not make a specific finding that Trump's January 27 order was directed against Muslims on the basis of their religion. But it did state that there was a great deal of evidence that this was in fact the intention behind the order, and it left that question open for further fact finding.
Perhaps a stronger argument than any of the above in favor of the proposition that Trump's January 27 order was not directed specifically against Muslims might be the fact that the order also bans refugees from every part of the world, at least "temporarily" (most likely for as long as Trump is president, that is, as is also undoubtedly the case with the "temporary" ban from the seven Muslim Countries - no one who has been listening to Trump's statements about Muslims and refugees both can be naive enough to think that these bans would not be extended by future executive orders if the courts ever allow them to go back into effect).
The January 27 order also very clearly contemplates adding other countries to the banned list as time goes on. Not all of these might necessarily be Muslim countries.
These provisions are consistent with a larger White Nationalist agenda to close off immigration from many, or even most countries of the world outside of Europe. Clearly this broader agenda is not limited to people from Muslim countries.
This is also shown by a bill that has just been introduced by Trump's allies in Congress to make drastic cuts in family based green cards world wide coming on top of the stepped-up deportation raids and roundups which are creating fear and terror in Latino and immigrant communities across America (see my previous ilw.com comment dated February 12). See also:
But the fact that banning immigrants from predominantly Muslim countries may very arguably be only the first step in a plan to cut off, or vastly reduce, most or all immigration from outside Europe, does not mean that Muslims are any less the primary targets of Trump's January 27 order.
In Germany from 1933 to 1945, persecution of allegedly racially inferior "Untermenschen" began with the Jews. It did not end there.
While this does not imply that Donald Trump or his White Nationalist followers support mass murder or genocide in any way - they clearly do not - the parallel between singling out Jews as primary targets of persecution in Germany then and doing the same in America to Muslim immigrants now cannot be overlooked.
I now turn to the main issue involved in the 9th Circuit's decision: do the courts, as one of the three co-equal branches of the government under our Constitution, have the power to look behind a presidential finding under INA Section 212(f) that entry to the US by any designated immigrants or classes of immigrants would be detrimental to the national interest?
On this question, the argument of Trump's Justice Department reminds one of the famous dictum in George Orwell's novel Animal Farm:
"All animals are equal, but some animals are more equal than others."
As will be shown in my forthcoming comment, this is the same dictum that Donald Trump is applying to the three ostensibly co-equal branches of the US government.
For the latest formulation of Trump's claim to have virtually despotic control over entry to the US by non-US citizens, as articulated by his top aide Stephen Miller, despite the 9th Circuit's resounding rejection of this contention, see:
And for a view that Trump's battle for supremacy over the courts on immigration is part of a larger drive for absolute power, see the following article by former Labor Secretary Robert Reich:
My forthcoming comment will look in detail at the two headed Hydra of the DOJ's argument that the courts should in effect suspend America's democracy and cede absolute power to the president over which non-US citizens may and may not enter the United States, namely INA Section 212(f) and the "Plenary Power" doctrine.
It will examine in detail how the 9th Circuit, in its landmark February 9 decision, has dealt with this double-headed threat to the survival of America's immigration system as we have known it for the past half century, and to our democracy itself.
First, in order to understand the significance of both the plenary power over immigration doctrine and of INA Section 212(f), and why they should both be looked at as extraordinary powers, to be used sparingly if at all by a president acting on his or her own, and not as broad power to rewrite America's entire immigration laws de novo, we need to look at the origin and circumstances of these two provisions of law.
In this light, it will become obvious that both of these provisions were enacted to be used as an instrument of persecution against specific classes of immigrants who were unpopular at the time for racial or ideological reasons.
The plenary power over immigration doctrine, which was a direct outgrowth of the 1880's and 1890's Chinese exclusion laws, was developed for the express purpose of making it easier for the federal government to keep Chinese immigrants from entering the US.
INA Section 212(f) was enacted in 1952, at the beginning of the Cold War and the McCarthy era of persecution of Americans and foreign citizens alike who were thought to have "left wing" or "pro-Soviet" views. The purpose of this statute was to make it easier to impose an ideological test fo foreign citizens seeking to enter the US.
In both cases, the intention was to eliminate the courts, and the Constitution, from the equation. Whether it is really as easy as that to make the courts, and America's constitution, disappear whenever the rights of an unpopular racial, ideological or, in the present case, religious group are at issue is a question that was at the heart of the 9th Circuit's decision in blocking Trump's Muslim ban order (which, yes, was exactly that, as I have shown above).
This decision will be discussed in detail in my forthcoming comment.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world to obtain work visas and green cards.
Roger's practice is concentrated in visas for H-1B specialty occupations, O-1 extraordinary ability, and J-1 training: and green cards through labor certification and opposite sex or same ssx marriage. His email address is firstname.lastname@example.org
Updated 02-13-2017 at 01:10 PM by ImmigrationLawBlogs