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Hawaii U.S. District Judge Blocks 2nd Muslim Ban: "The Court will not...pretend it has not seen what it has." Roger Algase

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Update, 9:15 pm, March 30:

POLITICO reports on March 30 that the Trump administration has filed a notice of appeal to the 9th Circuit against the order of Hawaii US District Court Judge Derrick Watson blocking the president's second. "watered down" Muslim ban executive order.

http://www.politico.com/story/2017/0...-appeal-236731

We can be quite sure that the Justice Department will argue in its appeal that the president is, in effect, a king or an emperor when it comes to admitting foreign citizens into the US, rather than the chief executive of a democracy governed by the rule of law.

As I explain below, it is not only the ability of up to 100 million citizens of 99 per cent Muslim countries to visit or immigrate to the US that will be affected b the outcome of this litigation.

If Trump is successful in this dramatic attempt to extend one-man power over our immigration system beyond anything previously imagined, we can be sure that the Muslim ban will be only the first step to remaking our entire immigration system to be much closer to the 1924 Europeans-only one, solely by presidential decree.

If this happens, America could become a very different country from the one we know now.

My original comment follows:

In a March 29 decision which represents yet another setback for the president's attempts to extend his unchecked power over immigration by branding Muslim immigrants as potential terrorists and Mexican and Latin American immigrants as criminals, a Hawaii US District Court, Derrick Watson, has issued a preliminary injunction against Trump's "watered down" version of his original executive order, which bans "only" 100 million people from six 99 percent Muslim countries, and every refugee in the entire world, from entering the United States.

In doing so, Judge Watson rejected the administration's central argument that the courts cannot look behind the four corners of the order to determine its real purpose if the order is "legitimate and in good faith" on its face (Kleindienst v. Mandel, 1972).

Instead, the Judge ruled that when Constitutionally guaranteed 1st Amendment establishment of religion and 14th amendment equal protection rights are at issue as he determined they are in Trimp's seven and six Muslim country entry ban orders, "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."

Judge Watson also stated that the historical context and events leading up to the adpption of this latest executive order were "full of religious animus, invective and obvious pretext."

Indeed, just looking at the four corners of the 2nd Muslim ban itself, even without regard regard to its history, raises serious questions as to whether an order banning virtually the whole population of six almost entirely Muslim countries without even allowing anyone to go though the normal individual visa screening process (as President Obama's far more limited order involving the the same countries did) is "facially legitimate and in good faith" according to the Mandel test.

To the contrary, just looking at the order itself. even without the obvious history of anti-Muslim animosity behind it which no court in a democratic country could ignore, cannot help but suggest that the issue of whether the Trump administration tried to commit "fraud upon the Court", in issuing the entry ban orders is also relevant to this decision.

Certainly, as Judge Warson's decision strongly implies, these two executive orders were riddled with bad faith, from corner to corner, from beginning to end.

Above all, Judge Watson's decision upholds the principle is that America is still a country governed by our Constitution and the rule of law, and not, as in some other countries one could mention, solely by the will fo the chief executive.

It is as if Judge Watson were saying to Donald Trump the same thing that Jason (admittedly not out of the most sincere motives imaginable) says to Medea in the play of the same name by the great dramatist Euripides 2,400 years ago:

"[Now] you understand justice and the rule of law."

(in the original Greek: diken espistasai nomois te chresthai)

A link to the full decision, in Hawaii v. Trump, can be found by going the POLITICO report on this decision:

http://www.politico.com/story/2017/0...-hawaii-236675

Certainly, supporters of Trump's Muslim ban orders are likely to use the lame argument that the so called "Plenary Power" over immigration doctrine, which the Supreme Court developed in the late 19th Centrury in order to keep Chinese immigrants out of the US because of race, insulates the president's Muslim ban orders from judicial scrutiny.

But nothing in any Supreme Court decision gives the "political branches" - Congress and the executive - "Plenary Power" over the rights of 3 or 4 million Muslim US citizens to have their religious beliefs and practices treated on the same level of equality with all other religions in America, rather than being relegated to inferior, second class and deeply suspect status, as the object of intense animosity and discrimination by our government and by the public.

Yet that is the obvious purpose and inevitable effect of Trump's Muslim entry ban. America is fortunate that the U.S. District Court in Hawaii did not close its eyes to the self-evident reality in this case, and that the U.S. District Judge in Hawaii, as Euripides states,"understands justice and the rule of law" in
the immigration context, even if our president and his administration do not.
___________________________________
Roger Algase
Attorney at Law
algaselex@gmail.com

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Updated 03-31-2017 at 10:07 AM by ImmigrationLawBlogs

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