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With travel ban, SCOTUS can correct for lower courts' anti-Trump bias. By Nolan Rappaport

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According to Eric Posner, a professor at the University of Chicago Law School, the lower U.S. courts have created a “Trump exception” to settled law on presidential powers with their travel ban decisions. They have ignored the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order, which in these cases was a national security interest in stricter vetting.

Trump appealed to the Supreme Court, but his case became moot when he replaced the temporary travel ban with a permanent program with the Presidential Proclamation he issued on September 24, 2017, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”

When fourth and ninth circuit courts enjoined implementation of his proclamation, he went back to the Supreme Court. On December 4, 2017, the Court ordered stays of the fourth circuit and the ninth circuitinjunctions.

The Court did not state its basis for granting Trump’s stay request in either decision, but stays are not granted for meritless cases. I expect Trump to prevail on the merits of his case.

According to Trump’s memorandum in support of a stay, the proclamation is the culmination of an extensive, worldwide review process, which was conducted by multiple government agencies to determine what information is needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the Immigration and Nationality Act.

The baseline incorporates three categories of criteria:


  1. Identity-management information. The United States expects foreign governments to provide information needed to determine whether individuals seeking benefits under our immigration laws are who they claim to be. The criteria in this category include whether a country issues electronic passports embedded with identity data, and whether it reports lost and stolen passports to appropriate entities.
  2. National security and public-safety information. The United States expects foreign governments to provide information about whether nationals of their countries who seek entry into United States pose national security or public-safety risks. This includes such things as whether the country releases suspected terrorist and criminal-history information when it is requested.
  3. National security and public-safety risk assessment. This includes an evaluation of national security risk indicators, such as whether the country provides a safe haven for terrorists, and whether it regularly fails to accept back its nationals who are subject to final orders of removal from the United States.


Read more at http://thehill.com/opinion/immigrati...nti-trump-bias

Published originally on The Hill.

About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.






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Comments

  1. ImmigrationLawBlogs's Avatar
    Suppose that America were to elect a president who had made anti-Semitic statements, such as "Judaism hates America" and called for world wide ban on Jewish immigration as a candidate. Suppose that same president then issued a ban against entry by citizens of half a dozen or so countries including Israel, but without mentioning Jews specifically?

    Same reaction by people who are now defending Trump's Muslim ban?

    Roger Algase
    Attorney at Law
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Suppose that America were to elect a president who had made anti-Semitic statements, such as "Judaism hates America" and called for world wide ban on Jewish immigration as a candidate. Suppose that same president then issued a ban against entry by citizens of half a dozen or so countries including Israel, but without mentioning Jews specifically?

    Same reaction by people who are now defending Trump's Muslim ban?

    Roger Algase
    Attorney at Law
    There is no Muslim ban, Roger.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    Of course, there is no Muslim ban, only a ban almost 200 million people from six countries which happen to be more than 99 percent Muslim, imposed by a president who campaigned on a promise to ban every Muslim in the world from entering the United States; and who only a few days before the Supreme Court's latest decision, disseminated some viciously anti-Muslim videos, intended to make all Muslims out to be dangerous criminals, just as the later executed Nazi war criminal, Julius Streicher, tried to do with the Jews in his infamous Der Stuermer newspaper.

    If Trump's executive orders were not a Muslim Ban, there was never such thing as the Chinese Exclusion Law either because that law was also ostensibly based on nationality (China) rather than race or religion.

    The original (1882) Chinese exclusion law (and its successors) also contained an important exception, i.e. for "merchants", who were not excluded, as opposed to "laborers", who were.

    Despite this, the US Supreme Court, in Chae Chan Ping v. US (1889) determined that the purpose of the exclusion law was racial - and it upheld the law in large part for that reason.

    Evidently, the Supreme Court had more respect for the reality of discriminatory intent in measures excluding immigrants
    than it has now, at least as shown by its two December 4 Muslim Ban case decisions.

    Roger Algase
    Attorney at Law
    Updated 12-06-2017 at 03:00 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Nolan also hasn't answered my hypothetical question about whether a president who campaigns on a pledge to ban Jews from the entire world from entering the US, and who states that "Judaism hates America";and who then, as president, issues a ban against all citizens of Israel from entering the United States, could be justly accused of acting out of anti-Jewish prejudice, no matter what the stated pretext for the ban might be.

    And let me add one additional element to my hypo: suppose that almost a year into his presidency, and only a few days before a major Supreme Court action relating to his ban order, this same hypothetical president retweets some (translated, of course) articles from Julius Streicher's Der Stuermer newspaper purporting to show Jews as all being dangerous criminals to the president's hypothetical 43 million Twitter followers.

    How could anyone possibly argue with a straight face that this hypothetical ban against immigrants from Israel was motivated by anything other that hatred of Jews, no matter what the claimed reason for the ban might be?

    Actually, my question is not purely hypothetical only. America actually had a law in effect for more than 40 years which banned almost of the world's Jews from immigrating to the United States, and which was intended by its authors to be for racial religious reasons, as every responsible historian of that period will attest.

    However, even a distinguished, respected and painstaking legal scholar such as Nolan will not be able to find the word "Jews" or "Jewish" anywhere in the text of that law, known as the Johnson-Reed "National Origins" immigration act of 1924.

    It was also, like Trump's Muslim Ban executive orders, ostensibly based on nationality, rather than race or religion.

    Very few visas were made available under that law for the countries where most of the world's Jews happened to live. (That law also did the same thing with Muslims,l Asians, Middle Easterners and Africans, as well as Southern and Eastern European who, all of whom were looked down on as "racially inferior" at that time.)

    Donald Trump, with his ban against entry into the US by almost the entire population of six almost 100 per cent Muslim countries, is taking America back to the spirit, if not the exact letter, of the open;y bigoted Chinese Exclusion Laws and "National Origins" immigration act of 1924.

    Roger Algase
    Attorney at Law
    Updated 12-06-2017 at 03:56 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan also hasn't answered my hypothetical question about whether a president who campaigns on a pledge to ban Jews from the entire world from entering the US, and who stated that "Judaism hates America", and who then as president, issues a ban against all citizens of Israel from entering the United States, could be justly accused of acting out of anti-Semitic prejudice no matter what the stated pretext for the ban might be.

    And let me add on additional element to my hypo: suppose that almost a year into his presidency, and only a few days before a major Supreme Court action relating to his ban order, this same hypothetical president has retweeted some (translated, of course) articles from Julius Streicher's Der Stuermer newspaper purporting to show Jews as all being dangerous criminals?

    How could anyone possibly argue with a straight face that this hypothetical ban against immigrants from Israel was motivated by anything other that hatred of Jews, not matter what the claimed pretext for the ban might be?

    He didn't do any of the things you are accusing him of doing.

    Nolan Rappaport
    Updated 12-06-2017 at 04:37 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    Trump didn't do any of the things I mentioned above? He didn't originally call for a world wide ban on Muslims from entering the US and say that "Islam hates us" as a candidate?

    He didn't ban almost 200 million citizens of a group of almost 100 percent Muslim countries purely because of their nationality, very much as Congress did to the Jews and other targeted ethnic/religious groups almost 100 years ago?

    Trump, as president, no longer just a candidate, didn't retweet some vicious Islamophobic videos purporting to make all Muslims look like violent criminals only about one week ago?

    There might be some room for legitimate disagreement over the meaning and significance of these facts, to be sure.

    But no one can deny that these are facts, that these events did take place. If the fact that Trump indeed did and said the above things is denied, then we are surely in George Orwell territory.

    Roger Algase
    Attorney at Law
    Updated 12-06-2017 at 05:48 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Trump didn't do any of the things I mentioned above? He didn't originally call for a world wide ban on Muslims from entering the US and say that "Islam hates us" as a candidate?

    He didn't ban almost 200 million citizens of a group of almost 100 percent Muslim countries purely because of their nationality, very much as Congress did to the Jews and other targeted ethnic/religious groups almost 100 years ago?

    Trump, as president, no longer just a candidate, didn't retweet some vicious Islamophobic videos purporting to make all Muslims look like violent criminals only about one week ago?

    There might be some room for legitimate disagreement over the meaning and significance of these facts, to be sure.

    But no one can deny that these are facts, that these events did take place. If the fact that Trump indeed did and said the above things is denied, then we are surely in George Orwell territory.

    Roger Algase
    Attorney at Law

    Roger says: Trump
    didn't do any of the things I mentioned above? He didn't originally call for a world wide ban on Muslims from entering the US and say that "Islam hates us" as a candidate?

    No, he said that that Muslim immigration should be stopped until the government could do background investigations on the Muslims. At that time, the DHS sec, the FBI director, and others responsible for such background inspections said they couldn't get information about Syrian refugees from within Syria because they did not have anyone in Syria to gather the information. It would have been better if he had limited his statement to that country, but he didn't.

    He did say that there were Muslims who hated America, which is true. Look at the State Department list of terrorist organizations if you don't believe me. But I didn't interpret what he said as meaning that ALL Muslims hate us.

    Roger says: He
    didn't ban almost 200 million citizens of a group of almost 100 percent Muslim countries purely because of their nationality, very much as Congress did to the Jews and other targeted ethnic/religious groups almost 100 years ago?

    That statement is too absurd to warrant an explanation of why it is wrong. I will say, however, that Trump did not write the Travel Ban. I know the guy who did, and I strongly suspect that he based it on an article I wrote when Trump made the infamous Muslim statement as a candidate. You might find it worthwhile to read my article.

    If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens (April 20, 2017),
    http://www.ilw.com/articles/2016,0420-Rappaport.pdf


    Roger says, Trump, as president, no longer just a candidate, didn't retweet some vicious Islamophobic videos purporting to make all Muslims look like violent criminals only about one week ago?

    He tweeted some acts of violence committed by people he presumably thought were Muslims. It's a stretch to call the video clips "vicious Islamophobic videos" and ridiculous to say those clips were supposed to make all Muslims look like violent criminals. And he could have portrayed the Muslims in a much more violent light just by telling a staffer to look through YouTube for horrible acts of Muslim violence. Someone sent one to me years ago and I still can't get it out of my mind.

    Roger says: There might be some room for legitimate disagreement over the meaning and significance of these facts, to be sure.

    But no one can deny that these are facts, that these events did take place. If the fact that Trump indeed did and said the above things is denied, then we are surely in George Orwell territory.

    No, the problem is that you don't know the difference between facts and interpretations. Rewrite your accusations without the inflammatory adjectives and you should be able to see what I mean.

    Nolan Rappaport

  8. ImmigrationLawBlogs's Avatar
    American Jewish leaders across a wide range of views were united in condemning the original version of Trump's Muslim and Refugee Ban last January. They remembered how America once closed its doors to millions of Jews fleeing Nazi persecution, just as desperate Muslims who are are now fleeing war and famine in places like Yemen, Syria and Libya are now barred from coming to the United States while Trump is busy retweeting anti-Muslim hate videos similar to the propaganda which the later executed Nazi war criminal Julius Streicher spread against the Jews in his infamous newspaper Der Stuermer.

    For the Jewish leaders' reaction to Trump's original Muslim ban, which differed only in detail from the latest version which the Supreme Court has just made (for the moment) into the Law of the Land, see:

    http://www.tabletmag.com/scroll/2232...ps-refugee-ban

    Roger Algase
    Attorney at Law
    Updated 12-08-2017 at 10:25 AM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    American Jewish leaders across a wide range of views were united in condemning the original version of Trump's Muslim and Refugee Ban last January. They remembered how America once closed its doors to millions of Jews fleeing Nazi persecution, just as desperate Muslims who are are now fleeing war and famine in places like Yemen, Syria and Libya are now barred from coming to the United States while Trump is busy retweeting anti-Muslim hate videos similar to the propaganda which the later executed Nazi war criminal Julius Streicher spread against the Jews in his infamous newspaper Der Stuermer.

    For the Jewish leaders' reaction to Trump's original Muslim ban, which differed only in detail from the latest version which the Supreme Court has just made (for the moment) into the Law of the Land, see:

    http://www.tabletmag.com/scroll/2232...ps-refugee-ban

    Roger Algase
    Attorney at Law
    It wasn't a ban, Roger. It was a temporary suspension pending the implementation of a new vetting system. But you don't seem to be willing to consider my views on that situation. How about the views of one of your Harvard colleagues, Alan M. Dershowitz?

    If the case reaches the Supreme Court, a major issue will be whether campaign rhetoric delivered by Donald Trump, when he was a private citizen running for president, may be considered by the courts in deciding on the constitutionality of an executive order. The lower courts gave considerable, indeed dispositive, weight to these anti-Muslim statements in deciding that the travel ban was, in reality, a Muslim ban that would violate the constitutional prohibition against discrimination on the basis of religion.


    Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed.

    Dershowitz: Why the Supreme Court will uphold Trump's travel ban

    Nolan Rappaport
  10. ImmigrationLawBlogs's Avatar
    If Professor Dershowitz calls Trump's orders a "ban", as he evidently did, according to Nolan's above quote from the professor's statement, why is it wrong for me to call it a ban too?

    Thus, having established that is is indeed a ban, (if Dershowitz is correct, as I think he is), then the only question is whether it is a Muslim ban or not.

    Since more than 99 percent of the people affected by every version of the ban order are obviously Muslims, calling it something other than a Muslim ban is a pretty strained interpretation that bears no connection with the reality of who is actually excluded.

    The legal issue, is, therefore, is whether the federal courts should pay attention to the reality of the ban in terms of whom it is meant to exclude, or whether they should follow a legal fiction suggesting some other explanation.

    This is what makes the reaction of so many of America's Jewish leaders across the spectrum relevant to our legal discussion.

    Why are so many respected Jewish Orthodox, Conservative and Reform leaders standing up for the rights of Muslims, who have not always had friendly relations with the Jewish people?

    Because Jews also know what can happen when America adopts a "Jewish immigration ban" which is disguised as something else - namely the "National Origins" immigration act of 1924 which nowhere mentioned the word "Jew" or Jewish", but in fact added to the death toll in Hitler's ovens and gas chambers by barring citizens of the countries where most of the world's Jews lived from immigration to the US.

    If there is one reaction to the Holocaust on which everyone who deserves to be called s human being can agree, it is

    "Never Again."

    All Americans of good will should have the same reaction as these respected Jewish leaders to Trump's ban on immigration by Muslims in place of the previously targeted Jews:

    Never Again!

    It is sad and shameful for America that the Supreme Court, so far, except for two of its Justices, has apparently not yet been able to see that.

    Roger Algase
    Attorney at Law
    Updated 12-08-2017 at 04:35 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    Roger, You are missing Dershowitz's main points, which are that the travel "ban" was not religious discrimination and didn't violate the constitution. He says it was based on legitimate security grounds.

    Nolan Rappaport
  12. ImmigrationLawBlogs's Avatar
    This is no doubt what Dershowitz believes. With all due respect to the professor, there is good reason to believe that the respected Jewish leaders from across the spectrum are showing a greater awareness then the Ban's defenders are showing of America's sad history of barring Jewish and other targeted immigrants from the US because of race or religion, using their countries of citizenship as a pretext; a history which Trump is now repeating with Muslims in place of Jews.

    Again, history is relevant and important in this context. For at least the first six decades of the 20th century, many American politicians and media figures targeted Jews in general as allegedly dangerous to America.

    Jewish immigrants were labelled as "anarchists" "Bolsheviks", "Communists", "internationalists" with loyalty only to a "Zionist state"; and even, during the Hitler period, potential "Nazi spies".

    Antisemitism and hatred against Jewish immigrants was spread by demagogues such as the popular radio figure Father Charles Coughlin, who accused Jews of wanting to control the world, and Henry Ford, a wealthy tycoon of the 1920's and 1930's period whose attacks against Jews in many ways anticipated Donald Trump's attacks on all Muslims (not just Jihadists) as in Trump's well-documented campaign statement: "Islam hates us".

    For more on how America's history of antisemitism led to barring most Jewish refugees from Hitler who had hoped to find safety in America, see:

    https://www.facinghistory.org/defyin...-and-holocaust

    Trump's Muslim ban orders are not the first time in our history that "national security" has been used as a cover for bigotry against a targeted group or groups of immigrants.

    The only thing that is new is that no other US president in modern history has made so many comments expressing open hatred for the targeted group concerned as Trump has done with Muslims.

    I would also point out that Alan Dershowitz, despite his distinguished reputation, is not the only professor who has taught at Harvard. Almost 200 Harvard professors opposed Trump's original version of the Muslim ban.

    http://www.thecrimson.com/article/20...gration-order/

    More recently, 45 constitutional law scholars from various US law schools have signed an amicus brief opposing the latest version of the Ban.

    https://news.law.fordham.edu/blog/20...rofessors-say/

    This last cited article also points out that Chad, one of the countries included in Trump's latest Ban list, has been an important counter-terrorism partner of the United States, fighting Al Qaeda and Boko Haram for years.

    The article states:

    "Already, in the aftermath of Travel Ban 3.0, Chad has pulled troops from the fight against Boko Haram in Niger."

    Does Donald Trump really care about America's national security?

    Or is he more concerned about the real reason for the "Travel" Ban -carrying out an agenda of hate which Trump first unleashed in his speech calling for a world-wide ban on admitting Muslims to the US two years ago; and which he has continued in numerous other statements and actions as president - most recently, only a week or two ago, by retweeting vicious anti-Muslim propaganda videos put out by a UK extremist with a reported history of Islamophobia to 43 million Twitter followers?

    Roger Algase
    Attorney at Law
    Updated 12-11-2017 at 08:39 AM by ImmigrationLawBlogs
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