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Will Trump's Shocking Retweets of Extremist Anti-Muslim Hate Videos Spell Legal Doom for His Latest Muslim Ban Executive Order? Roger Algase

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Update, November 30, 5:13 pm

For the latest reaction to Trump's anti-Muslim tweets, see, The Guardian, November 30:

Far right hatemongers cheer Trump's Twitter endorsement

https://www.theguardian.com/us-news/...ht-racism-hate

My original comment follows:

As both the US and the UK are reeling from the shock of Trump's retweets of vicious proto-fascist anti-Muslim hate videos originally posted by Jayda Fransen, who has a reputation for anti-Muslim extremism in the UK, one question immediately arises: can Trump's latest Muslim ban order survive this latest expression of the president's venomous animosity against the entire world Muslim community, not just those who may be suspected of terrorist sympathies?

I will not even describe the vile content of the videos, which cannot help but recall the unspeakable attacks against Jews as being violent criminals and degenerates promulgated by Julius Streicher in his infamous publication Der Stuermer, and which ultimately led to his execution as a Nazi war criminal.

Details of the videos, and of the horrified reaction in both the UK and the US to the fact that a president of the United States was actually capable of spreading such material can be found at:

https://www.politico.com/story/2017/...67888?lo=ap_d1

and at:

https://www.theguardian.com/us-news/...dent-is-racist

However, the concern raised by Trump's spreading of this material in defiance of the conscience of the world is only part of the story. There is also the question of whether there will be any legal consequences in the still pending dispute over Trump's latest Muslim ban executive order.

As everyone who has been following the Muslim ban litigation will have no difficulty in remembering, the central issue in the various lawsuits involving the three different versions of Trump's bans on entry to the US by citizens of various overwhelmingly Muslim countries (plus, in the latest version, a couple of non-Muslim ones thrown in for obvious cosmetic purposes) has been whether the ban is motivated by genuine national security reasons, as Trump and his Department of Justice have argued; or whether, as its opponents claim and an overwhelming majority of the 4th Circuit judges sitting en banc ruled regarding the second version of the Muslim entry ban ban, it was motivated by unconstitutional "animus" against Muslims and their religion in general affecting the rights of American citizens.

Aside from the DOJ's argument that (in effect) INA Section 212(f) gives the president the power of a dictator or an emperor to ban any immigrants he wishes from our shores (and airports) for any reason he chooses, an argument which is untenable when the constitutional rights of US citizens to freedom of religion are affected; the issue whether the president has a legitimate national security justification for the ban has come down to a question of fact concerning Trump's actual motivations in issuing the ban orders, rather than just the theoretical pretexts set forth in the ban orders themselves (such as that Syria, for example, was placed on a terror sponsorship list almost 40 years ago)!

In arguing that Trump's real motivation for the ban orders (which he has since criticized himself as being too weak and "politically correct") was hatred of and prejudice against Muslims as a religious group, not genuine national security concerns, opponents of the ban cited a host of Trump's campaign statements, such as, to give only one example out of many: "Islam hates us".

In opposition to this argument, the Muslim ban's defenders argued that campaign statements were irrelevant; they were too far back in the past; this would open the door to using something that a president might have said as a high school student in order to overturn future executive orders, etc., etc.

In other words, based on this time-worn strategy (going back to the time of Aristotle) of reductio ad absurdum, (he eis to adunaton apagoge in ancient Greek), the Muslim ban's defenders were asking the federal courts to blind themselves to the obvious reality that Trump had made hatred of Muslims and their religion in general, not just the need to protect against unquestionably dangerous terrorist groups such as ISIS, a centerpiece of his campaign.

However, the 4th and 9th Circuits, as well as various federal district courts, refused to put on the blinders or ignore the reality staring them in the face, and the Supreme Court essentially punted on this entire issue.

Chief Judge Roger L. Gregory, writing for a 10-3 majority of the full 4th Circuit court on May 25, 2017 in IRAP v. Trump, stated, in words which deserve to be forever engraved in America's legal history as a nation of freedom, democracy and equal justice for all:

"When the government chooses sides on religious issues, the 'inevitable result' is 'hatred, disrespect and even contempt' toward those who fall on the wrong side of the line. [Citation omitted.] Improper government involvement with religion 'tends to destroy government and to degrade religion' id, encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group."

For a summary of and link to the full decision, see:

https://www.nytimes.com/2017/05/25/u...-blocked.html?

If the above is true of an executive order which at least pretended to be based on rational and objective national security considerations, even if these, as the 4th Circuit and other federal courts also determined, were essentially nothing but window dressing; it is even more true when the holder of the highest office in our nation deliberately publicizes patently false and vicious material, based on nothing but pure hatred, against a particular religion.

Now, by retweeting the vile expressions of anti-Muslim hatred posted by an anti-Muslim extremist who has herself been convicted of anti-Muslim violence according to the above news reports, Trump has totally destroyed any possible argument that his own previous inflammatory anti-Muslim statements as a candidate should be disregarded as explaining the real reasons for his Muslim ban orders.

The Supreme Court, and various lower federal courts following the Supreme Court's decision, have, on a temporary basis, allowed some parts of Trump's latest Muslim ban order to stand (the first two orders now having been rescinded by the administration itself).

All of these courts should now, on their own motion, put the ban cases back on their calendars and, on the basis of this shocking new and unassailable evidence of Trump's obviously deep-seated personal "animus" against all Muslims, not just terrorists, they should strike down Trump's latest Muslim ban in toto, every single word of it, from alpha to omega - beginning to the end.

Since the following is a political issue, rather than a legal one, I will not go into the question of how much longer Congress can continue in good conscience to avoid beginning impeachment proceedings against a president whose ongoing expressions of bigotry against a major world religion which some 2 or 3 million peaceful, law abiding and patriotic US citizens also belong to raise increasingly serious questions, not just about the legality of his immigration policies, but about his fitness for the highest office in the land.

Roger Algase
Attorney at Law
algaselex@gmail.com

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Updated 11-30-2017 at 05:14 PM by ImmigrationLawBlogs

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