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Issue For Courts In Muslim Ban Case Is Not Whether President Is Dissembling, But Whether Judges Can Listen When He Tells The Truth. Roger Algase

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In an example of how a superficial view of the law can lead to distorted conclusions, Robert Barnes, who has been a Washington Post editor and reporter for more than 30 years, and who has been covering the Supreme Court since 2006, turns the US 4th Circuit Court of Appeals decision in the Muslim ban order case on its head and completely misses the main point in his May 28 article:

Court says essentially that Trump is not to be believed. Will Supreme Court conclude the same?

(I do not have a direct link. Please go to Google.)

As the title to his article implies, Barnes seems to have a problem with the concept that the executive branch of the government, in this case the president, could try to mislead the courts about the real purpose or intent of a particular order or action.

Oh, no! The president is being less than entirely truthful about a key issue? How could that be possible? That is what Barnes seems to be saying, in a throwback to a statement attributed to Richard Nixon that if the president does something, it must be legal.

Specifically, Barnes takes issue with the language in the majority decision by the 4th Circuit's Chief Judge, Roger Gregory, that Trump's six Muslim country ban on entry to the US (often misleadingly called a "travel ban" since the 180 million people affected by the order, 99 percent of whom are Muslims, are free to travel wherever they want - just not to the US), that Trump's order "drips with religious intolerance, animus and discrimination".

(One could legitimately ask whether the Muslim ban order is based on anything other than religious intolerance, but I will return to Barnes' article.)

Barnes dismissively writes:

"But it's worth another look at the remarkable rhetoric in Chief Judge Roger L. Gregory's majority opinion, which concludes that the 'true reason' for the travel ban was not protecting the nation's security but making good on a campaign promise born of anti-Muslim bias.

As Harvard law professor Noah Feldman put it in an essay for Bloomberg News, 'It's extraordinary for a federal court to tell the president directly that he's lying. I certainly can't think of any other examples in my lifetime.'"

Maybe there has been no similar example of a president's being less than candid with a court about bias against a particular ethnic or religious group as being the real reason for an executive order ostensibly dealing with national security during the lifetime of Professor Feldman, who was born in 1970 according to Wikipedia, but there has certainly been such an example during the lifetime of anyone who has reached the age of 73.

That example is known as US v. Korematsu
(1944).

In that case, the Supreme Court took President Roosevelt's national security pretext for obvious racial bias at face value, and Congress apologized for it four decades later in a statute signed by President Reagan.

Will a future president and Congress need to do the same thing if the Supreme Court upholds Trump's Muslim ban order?

The real issue facing the 4th and 9th Circuit Courts, and which will face the Supreme Court if there is an appeal and the High Court decides to take the case, is not whether the president was lying about the real reason for the Muslim ban order, but whether the courts should recognize that he was telling the truth.

As Judge Gregory recited in his decision, Trump showed the true reason for the ban, namely what the decision euphemistically calls "animus" against Muslims based on their religion, over and over again, during the campaign.

Trump also continued this bias by his actions as president in appointing notorious Islamophobes such as Michael Fynn, Stephen Bannon and Stephen Miller to top positions, and, according to news reports, giving at least the latter two a major role in drawing up the ban orders, to the exclusion of his real national security officials.

The issue in the Muslim ban lawsuits is not whether the courts have the power to accuse the president of lying, as Barnes suggests; it is, as Judge Gregory also stated in his decision, whether they are required to remain blind to the obvious truth.
________________________________
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 from many different parts of the world obtain work visas and green cards.

Roger's practice is concentrated in H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee work visas; and in green cards through labor certification and through marriage. Roger's email address is algaselex@gmail.com










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Updated 05-29-2017 at 01:26 PM by ImmigrationLawBlogs

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