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Is BANNON's Muslim BAN Still ON? DOJ Refuses to Back Down in New 9th Cir. Brief, While Trump Prepares Cosmetic Changes For New Ban Order. Roger Algase

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Update: February 17, 3:45 pm.

In a February 17 story, The Guardian provides more details about how national security officials are being shut out of decision making regarding the Trump/Bannon revised US travel ban against seven overwhelmingly Muslim countries, just as they were shut out of the original one. The Guardian writes:

"The goal of the new order [travel ban] is to bolster a signature initiative against ongoing legal and constitutional scrutiny, rather than revise it in a substantive fashion, relax its restrictions or consider any deleterious effect it has on national security, according to Guardian sources."

The Guardian continues:

"The process means domestic political concerns are given greater priority and consideration of their national security impact is marginalized despite the impact on US relations with much of the world."

https://www.theguardian.com/us-news/...ional-security

What does this say about the good faith of the Trump administration's claims in its original and latest briefs before the 9th Circuit Court of Appeals arguing that the president's decision to impose the ban is not reviewable by the courts because the president purportedly has the sole power to make national security determinations relating to immigrant entry to the United States?

The more information that comes out showing that the "national security" justification for Trump's seven country ban is not genuine, the more it becomes evident that the 9th Circuit's decision to look behind the DOJ'a "national security" claim and conduct fact finding as to whether the ban was based on religious/racial animosities instead was a sound one.

My original comment appears below.

The Department of Justice, evidently unable to put up a defense of Trump's Stephen Bannon inspired Muslim ban immigration order that it could expect to win in court, has settled instead a strategy that, on the one hand, in effect asks the 9th Circuit Court of Appeals to withdraw its TRO against the ban order on the grounds that the order is being replaced by a more "limited" one, while, on the other hand, it argues on the basis of clearly misleading statements that the original order was legally valid and does not need to be withdrawn.

To top it off, according to POLITICO, the administration is preparing a new, more "limited" order which would in fact make only cosmetic changes in the discredited January 27 order.

I will discuss this last point first. According to the POLITICO story, the new, "narrower" seven country Muslim ban order would exempt citizens of the seven targeted countries who already are in the US with legal visas. This would allow them to travel without fear of not being allowed to return.

The new EO would also, again according to POLITICO, clarify that US permanent residents from the seven countries are exempt from the scope of the entry ban, something that, to put it very charitably, was less than clear when the original order was introduced. For the full story and a link to the DOJ's latest brief filed with the 9th Circuit, see:

http://www.politico.com/story/2017/0...s-court-235106

These changes, no doubt, are welcome, because they make clear that people from the seven affected countries who have already been legally admitted to the US and who have connections with this country will be allowed to continue with their lives in the United States undisturbed by the president's order.

But, if the above POLITICO report about the proposed replacement executive order is accurate, the new order would still ban the almost 200 million citizens of the affected seven 99 percent or close to it Muslim countries (and other Muslim countries which the current order clearly contemplates adding to the ban, if one reads Sections 3 and 4 of the order carefully) who have never been to the United States.

In other words, if the above report is correct, the new proposed ban would still be aimed as keeping as many Muslims out of the United States as possible, based on the underlying assumption that their religion alone automatically makes them a danger to the United States.

There would be no real change in this policy, promoted by Trump's Senior White House Adviser Stephen Bannon, and his recently fired National Security Adviser, Michael Flynn, both of whom are well known for their view that America is in an ideological war, or "War of Civilizations", with the Muslim religion.

Nor, as the DOJ's latest brief that was filed with the Court on February 16 makes clear, has there been any change in the administration's argument that the president has unlimited power to prohibit any immigrants or groups of immigrants he wants from coming to the US.

Finally, as will be clear from the following discussion of the DOJ's latest brief, that there has been no backing down from the government's indefensible claim that Trump's ban affecting almost 200 million people from countries with close to, or in some cases more than, 99 per cent Muslim populations, is not based on religion, but on flimsy, also largely cosmetic, "national security" grounds.

I will discuss these latter two issues in more detail in a forthcoming comment.

Roger Algase
Attorney at Law
algaselex@gmail.com



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Updated 02-17-2017 at 05:59 PM by ImmigrationLawBlogs

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