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Trump Regime's Attack on Judicial Independence and Expansion of Public Charge Grounds to Advance Ethnic Cleansing Undermine Democracy. Roger Algase

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America's approach toward immigration law was, very clearly, never meant to be a model of democracy in action. From the time that our system of governmental control over immigration was first established, it was meant to ensure broad governmental powers to deny citizenship and immigration benefits to people who did not not belong to America's original white, Protestant majority.

This was true whether the targets of these laws were African-American slaves, as in the infamous Supreme Court Dred Scott decision; Irish Catholics targeted by the Know -Nothings; Asian immigrants barred by the Chinese exclusion laws; or Jews, Southern and Eastern Europeans excluded by the openly bigoted "national origins" 1924 immigration act which Adolf Hitler praised so highly in Mein Kampf and which Trump's A.G., Jeff Sessions, also wrote favorably about as a Senator some 90 years later in his 2015 "Immigration Handbook".

But even in the darkest days of the late 19th century Chinese exclusion laws, the president and his administration were never given absolute power over immigration - they could only act with with the approval of Congress.

The Supreme Court Court described this power as follows in US v. Chae Chan Ping 130 U.S. 541 (1889) - also known to history as the "Chinese Exclusion Case", parts of which are distressingly and ominously prescient of the language used at typical Donald Trump rallies 129 years later:

"To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation...It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us...If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed..."

(Italics added.)

No doubt, the above language of Justice Field was superficially more polite and elegant than Trump's referring to Latino, Asian, African and Middle Eastern immigrants as people from "shithole countries", "criminals" "rapists" , "drug dealers" and "terrorists", who are "pouring into" and "infesting" the United States, while "slicing up" American women.

But, despite the passage of more than a century and a quarter during which one might hope that America would have learned a little more about racial tolerance and equal justice before the law for all people regardless of skin color or religion, the basic tone and intent and purpose of the above 1889 Supreme Court's statement and Trump's anti-immigrant rants in his rallies and tweets are no different.

Except for one point: In 1889, the Supreme Court ruled that even though legal bigotry against immigrants of a different race was acceptable, it had to come from the legislative branch, i.e. Congress.

35 years later, when the 1924 national origins immigration act that was later to be responsible for the deaths of very probably thousands of Jewish refugees trying to flee Hitler's ovens and gas chambers (including Anne Frank, whose family was also denied a US visa) was passed, it was authorized by Congress.

But now, we are the new, "Donald Trump Era" when, according to the administration's latest moves, the president is free to make sweeping, drastic, changes in th laws relating to both immigration enforcement and legal immigration on his own, without seeking approval, or even any input or consultation, from Congress whatsoever.

In 1889, the US Supreme Court's recipe for immigration policy was racism, pure and simple. Now our president's formula for immigration is racism together with one-man dictatorship.

I will discuss two examples of this below. The first involves Jeff Sessions' new policy as Attorney General of removing deportation cases from Immigration Judge's dockets and transferring them over to a more compliant judge if he thinks that the first judge's decisions are too favorable to the immigrant.

This denial of what the essence of justice before the law is supposed to mean in a democracy has led to the unusual step of public action against the Trump administration by the Immigration Judges' union to try to preserve at least some vestiges of the judicial independence on which America's freedom depends.

http://thehill.com/latino/401011-imm...ainst-sessions

But we should not make the mistake of thinking that Trump's expansion of authoritarian control over the immigration system, in pursuit of what amounts to a form of ethnic cleansing, is limited only to mass deportation of unauthorized immigrants.

americanprogress.org has issued a detailed report of plans for a huge expansion of the definition of "public charge" grounds of inadmissibility which could bar up to 10 or 20 million family and diversity immigrants seeking legal green cards from being able to live in the US and subject them to deportation.

Use of almost any kind of government benefit, including ones which are widely used by many millions of US citizens could be a bar to legal immigration. This would be one of the most significant re-writes of immigration law in many decades and could drastically reduce the number of legal immigrants from all but the richest (and of course, mainly white) countries.

"Public Charge", of course, has a long history of being used in support of the goal of excluding immigrants on racial grounds - beginning with the Chinese exclusion laws if not earlier. But this has never been done before without Congressional involvement.

Now, just as the Trump administration regards immigration court judges as merely instruments of the regime who are there to reached predetermined results rather than follow the rule of law, it is making Congress, the elected representatives of the American people, superfluous in making drastic change the immigration laws.

This is dictatorship in action, and no one should think that this cancer on America's democracy will be limited to immigration, or affect foreign citizens only, for very long, as Trump, Sessions and Miller pursue their goal of making America white once again though imperial diktat rather than through the mechanisms of a free society.

More details about the proposed changes in the Public Charge grounds, a proposal which is causing almost as much alarm and outrage across America as Trump's tyrannical and inhuman family separation did, are available at

https://www.americanprogress.org/iss...-health-tests/
____________________________
Roger Algase, a New York immigration attorney and graduate of Harvard College and Harvard Law School, who has been practicing in this field for 40 years, is a lawyer with two obsessions: obtaining legal visas and green cards for mainly skilled and professional immigrants; and writing sbout the dangers to America's immigration system and our democracy from the current administration's pursuit of ethnic cleansing against non-white immigrants - both legal and unauthorized - as well as their American children.

Roger's email address is algaselex@gmail.com


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Updated 08-11-2018 at 12:46 PM by ImmigrationLawBlogs

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