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Prominent Rabbi and Minister Call Trump's Authoritarian New Muslim Ban, Which Recalls Earlier US Measures Against Jews, Unconstitutional. Roger Algase

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Leaders of two of America's most prominent religious institutions, Rabbi Burton L. Visotsky of the Jewish Theological Seminary and Rev Bertram Johnson of the Riverside Church (both in New York) have issued a joint statement condemning Donald Trump's revised ban on entry to the US by citizens of six overwhelmingly (in some cases, more than 99 percent) Muslim countries.

Haaretz, one of Israel's leading newspapers, has also compared Trump's attacks on Muslims to the movement to keep Jewish immigrants out of the US in the late 19th and early 20th centuries.

See:

http://www.thehill.com/blogs/pundits...slim-ban-again

and

http://www.haaretz.com/world-news/u-...emium-1.737227

In their joint article appearing the The Hill on March 12, Rabbi Visotsky and Reverend Johnson pointed to a recent statement to Fox News by White House policy adviser Stephen Miller that the new six country Muslim ban order will "have the same basic policy outcome" as the previous order, which was stayed by the 9th Circuit and other federal courts.

It would be very surprising if the federal courts, such as the US District Court in Hawaii which is now reviewing the new executive order, ignore or overlook Miller's statement in determining whether there is any material difference between the intent to discriminate against immigrants on the basis of religion in the new six country ban and the original, now revoked, seven country ban order.

In their statement, Rabbi Visotsky and Reverend Johnson also show clearly, in words which arguably go right to the heart of the matter more directly than the opinions of the 9th Circuit and other federal courts have done to date, why religious discrimination against Muslim immigrants also adversely affects the Constitutional rights of Muslim American citizens to the free exercise of religion

"This Muslim Ban 2.0 is the next in a series of actions by the adminstration that make Muslim Americans feel unwelcome in their own country."

And it is not only the rights of Muslim Americans that are affected. As the two distinguished religious leaders also state:

"That 'same basic policy outcome' violates the principles established in the Constitution. Our nation was founded on the freedom of religion and we must protect that freedom for all Americans today."

In other words, Trrump's new six country Muslim ban, no less that the first one, is a blow against the religious freedom of all of us in America today, regardless of what religion we may or may not belong to or practice.

As the grandchild of a another Jewish Rabbi, one who immigrated to America in the late 19th century, at a time of the same type of hostility toward Jewish immigrants that Donsld Trump and his top advisers are now showing toward Muslim immigrants, I can well understand and relate to the above statement by these two respected and courageous religious leaders.

The above cited article in Haarerz well describes the atmosphere of hatred and exclusion which Jewish immigrants to America had to face in the time of my immigrant grandparents.

This history, as well as America's history of prejudice and persecution toward Irish, Asian and, let us not forget, Mexican, as will as many other immigrant groups which were not from the "Nordic", Protestant, countries of Western Europe, is woven into the fabric of Trump's Muslim ban orders.

With regard to Jewish immigrants specifically, Haaretz, in an article written prior to last year's election, stated:

"The revered Senator Henry Cabot Lodge lobbied against Jewish immigration at the end of the 19th and start of the 20th centuries. He was the driving force behind the literacy test that was aimed at keeping Jews out.

The Israeli newspaper then contrasts Lodge's "restraint" with regard to voicing his antagonism toward Jewish immigration with Trump's openness in identifying which ethnic or religious immigrant groups he is most opposed to:

"But in a famous speech in 1897, Lodge refrained from specifying that it was the Jews who were bothering him the most; 120 years later, Trump has had no constraints in identifying Mexicans as murderers and pinpointing Muslims as problematic immigrants who had no intention of assimilating."


In its decision blocking Trump's first, seven country Muslim immigration ban, the 9th Circuit recognized that the history of that order, including Trump's election campaign statements and proposals, was relevant to understanding that order's real intent, and that this history could mot and should not be overlooked in making a final determination concerning the January 27 order's legality and Constitutionality.

One hopes that in the State of Hawaii's lawsuit against the replacement Muslim ban order, and in any other lawsuits that may be brought against that order, the courts will consider not only the immediate election campaign history of Trump's Muslim ban orders, but also their larger context of Trump's mass deportation executive orders targeting Latino, Asian and other minority immigrants.

And in order to gain a full understanding of both Trump's Muslim ban orders and his mass deportation orders, America's history of persecuting minority immigrants, going back at least to the time of the mid 19th Century Know-Nothings, cannot be lightly passed over.

David Bier, an immigration policy analyst at Cato Institute, writing in the New York Times on January 27, in response to Trump's original seven-country Muslim ban order, describes this history as follows:

"...a long and shameful history in this country of barring immigrants based on where they came from. Starting in the 19th century, laws excluded all Chinese, almost all Japanese, then all Asians in the so-called Asiatic Barred Zone. Finally, in 1924, Congress created a comprehensive 'national origins system' skewing immigration quotas to benefit Western Europeans and to exclude most Eastern Europeans, almost all Asians, and Africans.

Mr. Trump appears to want to reinstate a new type of Asiatic barred zone by executive order."


https://www.nytimes.com/2017/01/27/o...egal.html?_r=0

In effect, Trump, in his original seven Muslim country order, as in essence unchanged in his new six Muslim country ban order affecting some 100 million people, 99 percent (or close to it) of whom belong to that religion, is trying to bring back America's long and shameful history of barring immigrants from the US on the basis of race and religion.

And Trump is not even trying to do this by Congressional action, which might at least provide a fig leaf of "legality" under the Plenary Power doctrine set forth by the Supreme Court in the dark and shameful time of the Chinese Exclusion laws.

Instead, Trump is trying to wipe out 50 years of non-discriminatory immigration policies mandated by the landmark 1965 immigration reform law, which abolished the discriminatory 1924 national origin immigration quotas, by one -man executive fiat.

Bier also alludes to the authoritarian nature of Trump's ban, which, according to mostt if not all news reports, was drawn up without any input, or even knowledge, by Congressional leaders in either party, or even Trump's own national security or foreign affairs experts:


"...Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president to 'suspend the entry' of 'any class of aliens that he finds are detrimental to the interests of the United States."

Bier continues:

"But the president ignores the fact that Congress, the restricted this power in 1965, stating plainly that no person could be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence.'...

Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between 'the issuance of a visa' and the 'entry' of the immigrant. But this is nonsense. Immigrants cannot be legally issued a visa if they are barred from entry. This all orders under the 1952 law [INA Section 212(f)] apply equally to entry and visa issuence, as his[January 27] order acknowledges."

Bier continues:

"While presidents have used their power dozens of times to keep out certain groups of foreigners under the 1952 law, no president has ever barred an entire nationality of immigrants without exception."


Herein lies tha biggest danger of all in both Trump's original Muslim ban order and in is slightly scaled down, essentially cosmetically changed one, which, as quoted above, still seeks to achieve "the same basic policy outcome".

The danger is that by claiming that he has the right to a vast expansion of the unilateral power to exclude immigrants that was actually conferred by Congress or has been used by any previous president, Trump is taking one more giant step toward imposing authoritarian, one man rule in America.

This can only remind us of how another chief executive in a different country used a different set of enactments, aimed against the same ethnic/religious group that Senator Henry Cabot Lodge was so anxious to keep out of America, as a stepping stone to solidifying absolute power in his country just over 80 years ago.

These enactments, promulgated in Germany in 1936, were known as the Nuremberg Laws.
___________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants, without regard to ethnicity, religion or nationality, obtain work visas and green cards in this land of freedom and equal opportunity for all.

Roger's email address is algaselex@gmail.com

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Updated 03-13-2017 at 09:04 AM by ImmigrationLawBlogs

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