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President's Bad Faith and Claim of Unlimited Power in Defending Muslim Ban Pose an Existential Threat to America's Democracy. Roger Algase

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The following comment has been revised as of May 11 at 9:27 pm.

This comment will go into detail about the dangers to America's democracy posed by the claim of unlimited presidential power which Donald Trump's lawyers have been asserting before the US 4th Circuit Court of Appeals, and other federal courts, in order to try to justify his order banning at least 100 million people from entering the US without any showing of wrongdoing, merely because they happen to be citizens of six almost 100 per cent Muslim countries.

First, let us take a close look at the president's claim, argued at length before the court in the 4th Circuit Muslim ban case, to the effect that even if a presidential action is in bad faith, the courts have no power to look into that fact or to act on it.

Admittedly, when the president issued his original and revised Muslim ban orders, there was a national security pretext to be sure.

However, both the history of these orders and the fact that there has been no evidence of any increased danger to America or risk of attack arising from the fact that the courts have blocked these orders show beyond any possible doubt that national security was not the main purpose of these orders, but that an unconstitutional assault on religious freedom and equal protection of the law for America's Muslim minority was.

Both the history of these two orders, originating in the president's December 2015 call for a world-wide ban on entry to the US by Muslims, and the obvious bad faith behind these two orders are described in detail in an amicus brief submitted in the 4th Circuit litigation by a group of constitutional law scholars, led by a Joshua Matz, a distinguished former Harvard Law Review editor and law clerk to Justice Anthony Kennedy, and co-author with Professor Lawrence Tribe of a book called The Roberts Court and Constitution. See:

http://www.robbinsrussel.com/attorneys/joshua-matz

For the full text of the amicus brief, follow the link by clicking on the word "desribed" in Matz' following article on the 4th Circuit case in The Guardian May 9th issue:

https://www.theguardian.com/commenti...slative-branch

and then follow the link to the full brief in the summary of the brief that will appear on the page the comes up after clicking on the above word "described".

As Matz writes in the above article:

"To start, supreme court precedent
requires courts to assess presidential motives here. As I described in a brief on behalf of legal scholars, under the establishment clause, official acts based in animus toward any particular religion are forbidden."

Matz continues:

"As professor David Hemel has explained, under relevant immigration cases, 'a decision to exclude aliens from the country can be struck down on a convincing showing of bad faith.' Several judges, including Pamela Harris and James Wynn Jr., properly emphasized that these rules compel a judicial analysis of Trump's purpose."

Then, after stating that all of Trump's anti-Muslim remarks, not just the ones he may have made as president, are relevant to this policy, Matz writes:

"Any other conclusion would be destructive of our constitutional culture. The notion that the president can speak without any sense of legal responsibility for his statements is chilling."

And, in answer to the claim of unlimited power over immigration which the president is now making before the courts, Matz writes:

"It's true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But there surely comes a point where reliance on this rule amounts to judicial abdication - and Trump's continuing bad faith and irregularity suggest we have crossed that Rubicon. Even if we haven't, the nature of presumptions is that they can be rebutted, and the evidence of Trump's bad faith toward American Muslims is overwhelming."

Anyone who has any doubts about the "animus" (to put it euphemistically) toward Muslims and their religion which obviously motivated Donald Trump's Muslim ban orders need only read his venom-saturated, poisonous December 7, 2015 speech calling for a world wide ban on entry by Muslims to the US which I quoted in full in my previous comment on this subject, and which was since followed up by a long series of hostile comments and actions toward Muslims too numerous to mention here.

Matz concludes:

"Judges may not invalidate Trump's travel ban merely because they disagree with it, but they assuredly can strike it down for violating fundamental rights. Our history offers painful lessons about the potential for tragedy when courts fail to exercise this vital responsibility."

And finally, Matz warns:

"But if the judiciary blinds itself, freeing Trump of all responsibility for his words, policies like this may define our future"

But the danger to our democracy that was presented by Trump's attempt by means of the Muslim ban orders to institute unfettered, one-man control over a key part of this country's immigration policy, without being subject to any control by the courts or the constitution, is already now already apparent.

The fundamental issue presented by the president's Muslim ban orders, as will as his other unilateral actions against immigrants since become president is: How long will America remain a democracy in what Attorney General Jeff Sessions recently called the "Donald Trump era" of immigration?


__________________________________
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 receive work visas and green cards without regard to their ethnicity, national origin, or religion. Roger's email address is algaselex@gmail.com




To be continued.

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Updated 05-12-2017 at 07:52 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Famed Harvard Constitutional Law Professor and lifelong Democrat Alan Dershowitz:

    “The idea of focusing so heavily on campaign rhetoric and essentially saying, look, if Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it, it’s unconstitutional because he said some things about Muslims in the run-up to the campaign, that’s not the way the law is supposed to operate. And finally, the Trump Justice Department is getting smart. They are appealing this not to the Ninth Circuit where they are likely to get an adverse ruling. They are appealing it to the Fourth Circuit. The Fourth Circuit is a much more conservative court. And much more likely to uphold the travel ban, and then if the case goes to the Supreme Court and ties four to four, Trump wins.”

    “I actually said that this wasn’t constitutional analysis. It was psychoanalysis. There is precedent in extreme cases where legislators in enacting a statute say things that you can sometimes look to the legislative intent. But I have never heard of a case where the rhetoric of a candidate, ambiguous rhetoric to be sure — because I do not believe this is a Muslim ban —focusing on a country like Iran, the greatest exporter of terrorism, not only no vetting, it sends terrorists out in order to kill Americans. Iran has so much blood on its hands of Americans and American allies, to exclude a country like Iran from the list would be absurd. And the list —although for a different purpose — was originally designed by President Obama. So how can you say that the exclusion of six countries on the list was motivated by what Mr. Trump said when he was candidate Trump? That is not good legal analysis. I’m putting my reputation on the line—I predict the case gets to the Supreme Court, the Supreme Court will uphold the major provisions of this ban.”
  2. ImmigrationLawBlogs's Avatar
    With all due respect to Alan Dershowitz, he is dead wrong on this one. We don't need Sigmund Freud to tell us that Trump hates Muslims and that that was the only real reason for the six or seven country ban executive orders.

    Everyone in America and throughout the world knows this. Why should the courts alone have to turn a blind eye to the real reason for the ban and adopt a legal fiction instead that it might have been legitimate.

    Dershowitz is a distinguished legal scholar to be sure. So is Joshua Matz, a former Harvard Law Review editor and Law Clerk to Justice Kennedy, as well as co-author of a book about the Roberts Supreme Court together with another Harvard icon, Professor Lawrence Tribe.

    Matz's opinion, backed up by an impressive array of legal precedents set forth in his brief, is the opposite of the one you quote by Dershowitz.

    Matt, you might want to read Joshua Matz' brief before the 4th Circuit on behalf of a consortium of legal scholars and then explain why you think they are wrong in saying that the courts not only have the right, but the obligation, to look into the issue of bad faith in presidential orders.

    Roger Algase
    Attorney at Law
    Updated 05-12-2017 at 06:00 PM by ImmigrationLawBlogs
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