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, 04-20-2017 at 07:56 AM (390 Views)
On April 19, the American Bar Association filed an amicus brief with the U.S. 4th Circuit Court of Appeals asking that Court to uphold the decision of a Federal District Court in Maryland staying enforcement of Donald Trump's revised executive order banning travel to the US by citizens of six overwhelmingly Muslim countries.
For the ABA announcment and a link to the full brief, see:
The announcement states that a brief will also be filed with the 9th Circuit Court of Appeals urging that Court to uphold a similar order by a Federal District Judge in Hawaii.
The ABA's 4th Circuit brief makes the following arguments against Trump's executive order imposing the ban:
1) The EO violates the Establishment Clause of the First Amendment,
2) The EO violates the equal protection guarantee of the Fifth Amendment,
3) The EO violates federal immigration laws, including the Immigration and Nationality Act of 1965.
The ABA brief also argues that the federal courts have jurisdiction to review the president's executive order because its history shows that the order is not "facially legitimate and in good faith", according to the standard enunciated in the two landmark Supreme Court cases of Kleindienst v. Mandel (1972) and Kerry v. Din (2015).
It is impossible to overestimate the significance of this litigation over Trump's latest Muslim ban executive order.
If this executive order is upheld, and especially if the courts decide that the presidential order cannot be reviewed by the judiciary, Donald Trump will be free, like a monarch more than the president of a constitutional democracy, to issue future executive orders without restraint banning immigration, not only from additional Muslim countries, as is the obvious intention based on the language of the EO itself and its predecessor seven country ban, but from any country or area of the world which Trump and his top immigration advisers, Jeff Sessions, Stephen Bannon, Stephen Miller and Kris Kobach, regard as "detrimental" to US interests.
One does not have to have unusually prescient powers to guess which countries and areas of the world those might just possibly happen to be, given the admiration that some of these top advisers, if not Trump himself, have shown for the infamous northern Europeans only Immigration Act of 1924.
(However, there is certainly no reason to expect a travel ban against citizens of Russia or of at least one other Eastern European country that comes to mind, while Donald Trump is the president.)
More details about the ABA's arguments, as well as some thoughts about how the newest Supreme Court Justice, Neil Gorsuch, might react based on his opinion in a 2016 10th Circuit deportation case, if the Muslim country ban issue ever goes to the Supreme Court, will be discussed in my forthcoming detailed analysis of the ABA's brief.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants receive work permits and green cards for more than 35 years, without regard to ethnicity, religion or national origin. Roger's email address is firstname.lastname@example.org