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Trump may face a constitutional crisis over Fourth Circuit’s Travel Ban decision. By Nolan Rappaport

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CNN.COM
In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”

The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.

History of the travel ban.

In December 2015, Donald Trump made a campaign statement “calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

This was several weeks after a report from the Homeland Security Committee had revealed our government’s difficulty obtaining information about Syrian refugees from within Syria.

For instance, the report quotes former FBI Director James Comey as saying, “We can query our databases until the cows come home, but nothing will show up because we have no record of that person...You can only query what you have collected.”

Similar problems restricted information from other Muslim countries as well.

Trump, therefore, seemed to me to be saying that until we can do adequate background investigations, we should suspend the entry of Muslim aliens.

President’s authority to exclude aliens.

Read more at --
http://www.huffingtonpost.com/entry/5929ff8ce4b08861ed0cca0e


Published originally on Huffington Post.

About the author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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  1. ImmigrationLawBlogs's Avatar
    Nolan's article utterly fails to address what one federal court (I believe it was the District of Washington, but I will have to check that) accurately called the "mountainous" evidence of bad faith on the president's part in using national security as a cover for what he said over and over again, throughout his presidential campaign was intended to be a ban based on religion.

    Nolan can parse the following words any way he wants - dice, slice, bob, weave, whatever, but when Trump said during that campaign: "Islam hates us", he was talking about the entire religion, not individual terrorists or even members of specific terrorist groups.

    At least that is what these English words would mean to anyone over the age of 5 who speaks the English language.

    Now, there are those who want the courts, and the country, to believe, that miraculously, on January 20, 2017, the day that Trump took office as the second US president to be elected in this century while losing the popular vote, he somehow outgrew his crude and vicious attacks on Muslims as a religion during the campaign - the warnings that even Muslim US citizens should be tracked with "a lot of databases", and surveillance of their places of worship - that though the operations of some kind of Deus ex Machina all of these scurrilous attacks on an entire world religion should suddenly be forgotten in an Orwellian "Memory Hole", and that a new, dignified "presidential" Donald Trump suddenly appeared out of nowhere on that "magical" day, just as Athena emerged fully grown from the forehead of Zeus; and that Trump as president started with a "clean slate", rather than with his previous cesspool of vilification and vituperation, at least as far as Muslims were concerned.

    What judge could possibly be expected to believe such nonsense? And if Trump suddenly became a mature, responsible chief executive on January 20, concerned only about the nation's security and the safety of the American people, why did he (according to every newspaper report I have seen) ignore or bypass his national security advisers in drafting the ban orders, and instead rely chiefly on outspoken Islamophobes whom he had appointed to high advisory positions - Bannon, Miller, and the soon to be disgraced and fired Michael Flynn, who had called the Muslim religion a "cancer".

    4th Circuit Chief Judge Roger Gregory's finding in his majority opinion that Trump's executive order was "dripping" with religious prejudice and animosity against Muslims was entirely accurate, based on the record of almost everything that Trump has done and said against Muslims, and so was the Chief Judge's conclusion that the "national security" pretext for the executive orders was nothing more than an empty facade.

    Trying to ignore or twist away that reality would make no more sense than, in the 1930's, ignoring Joseph Goebbels when he shouted about the Jews:

    "Die Juden sind unser Unglueck!"

    would have made.

    In the (unlikely in my view) event that the US Supreme Court overturns the Circuit Courts (since the 9th Circuit will almost certainly join the 4th Circuit) and upholds Trump's Muslim ban, then the High Court will in effect be ruling that whenever the president pronounces the two words: "National Security", then he has the power of a dictator, and that neither the rights of immigrants nor minority American citizens have any value at all.

    Then, America will be back in the days of US v. Korematsu (1944) which upheld a different president's Japanese-American internment order - an order which Congress and President Reagan apologized for by statute some four decades later.

    If the Supreme Court in effect says that anything the president says about banning Muslims from America must be true simply because he is the president, just as 2+2=5 became the "truth" in Orwell's 1984, than we will no longer have a democracy in America - we will have only rule by "Big Brother" Donald Trump.

    That would be America's real Constitutional crisis.

    Roger Algase
    Attorney at Law
    Updated 05-29-2017 at 10:04 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    The court's ability to address bad faith is limited by Mandel to times when the language of the order indicates that it is a possibility. This is explained in the first dissenting opinion.

    In any case, Roger is missing the point of my article, which is that the bad faith Judge Gregory found is fungible. If it can be used to invalidate the travel ban order, it can be used to invalidate everything else Trump does that involves a country with a Muslim majority, which would cause the constitutional crisis. And the Trump haters will find other things Trump said as a candidate that they can use to chip away at his ability to function as president.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    Further to my above comment, how could any responsible judge, who takes the requirement set forth by the Supreme Court 45 years ago in Kleindienst v. Mandel (1972) that an executive branch action barring a foreign citizen from entering the United States (a visa denial, in that case) must be facially legitimate and bona fide in order to be immune from judicial scrutiny seriously, ignore the background of Trump's first Muslim ban order, which, I respectfully remind Nolan, was prepared after Trump become president, not during the campaign which Trump's apologists are asking the court to ignore as if it had never existed?

    Here is how The Atlantic described Trump's posture in preparing the executive order:

    "...Trump's [initial Muslim entry ban] order relied on political advisers like Stephen Bannon and Stephen Miller while bypassing many expert federal employees who could have anticipated weaknesses in the policy and greatly improved on it. As Ben Wittes put it, 'in the rational support of security objectives, you don't marginalize our expert security agencies and fail to vet your ideas through a normal interagency process.'"

    https://www.theatlantic.com/politics...s-safe/515745/

    Nolan argues for a very narrow definition of good faith (bona fide) as set forth in the Mandel decision, i.e. that the good faith requirement is met if the order in question is in good faith on its face.

    This construction would deprive the words "good faith" of any meaning whatsoever. It would mean that any properly drafted document, in any kind of transaction, has to be taken at face value by the courts, even if the surrounding circumstances made clear that the document was issued or used with fraudulent intent.

    In a recent ilw.com post, I wrote about a 3rd Circuit case, Herring v. US, (decided September 22, 2005), in which the court looked into the merits of a national security claim that the federal government had made more than half a century earlier (in an earlier stage of the same litigation!) in order to avoid turning over a classified military document dealing with an airplane crash which was the subject of the lawsuit in question.

    Almost fifty years after the government's refusal to turn over the document to the court on national security grounds, the air crash report finally became declassified, and the original plaintiff's successors argued that the national security claim was so bogus that it amounted to a fraud on the court in the original litigation.

    The 3rd Circuit, rather than throwing out the second lawsuit and upholding the national security claim without looking behind it, instead examined the entire declassified report to see if there was any merit to the government's claim that providing it to the court a half century before would have compromised military secrets.

    (The court finally decided in that case that the government's claim that the report contained military secrets which might have jeopardized national security if released to the court for inspection a half century earlier was justified - but the point is that the court looked into the merits of the national security claim to see whether it was made in good faith, or whether it was made with the intent to deceive the court.)

    Here, where the religious freedom of three or four million Muslim American citizens is at stake, and 180 million people in six countries, none of whose citizens has ever been involved in a terror attack in the US are potentially affected by the ban, the argument for the courts looking into the good faith of Trump's national security claim is even more compelling than in Mandel, which involved a visa refusal to only one person, or in Herring, which originally involved only three surviving spouses of passengers killed in a single airplane accident.

    One might even argue that bad faith or fraudulent use of a national security claim by a president to accomplish a political purpose, especially when that purpose is to stigmatize and demonize a world religion to which several million Americans belong by banning 180 million (Judge Gregory's figure) members of that religion from entering the US without any other genuine reason, is such an egregious failure of the president's duty to protect national security as to be an impeachable offense.

    But that question is beyond the scope of the 4th Circuit's decision in the Muslim ban case, and I will not go into that issue further here.

    Roger Algase
    Attorney at Law
    Updated 05-30-2017 at 07:02 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Even if one accepts Nolan's limited and artificially narrow interpretation of the term "good faith" as set forth in Mandel to mean only good faith on the face of an order barring one or more people from entering the United States, US immigration history shows that using nationality alone to exclude an entire class of immigrants from the US has always been nothing more than a cover for racial or religious prejudice in the past.

    This is the method that was used in the infamous Chinese exclusion laws beginning in the 1880's. There was no mention in those laws of excluding anyone based on race or ancestry. The law applied to citizens of China only, and not even all of those - "merchants" were exempt from the bar, and only "laborers" were affected.

    Nevertheless, despite the fact that the Chinese exclusion laws allowed admission of citizens of every other country in the world even if they were of Chinese ancestry, the US Supreme Court, in Chae Chan Ping (1889) held that their purpose was racial (and upheld the validity of those laws for that very reason)!

    In 1924, based on a long and incontrovertible legislative history of anti-semitism and anti-Catholic agitation, Congress enacted a law which effectively barred all but a tiny number of immigrants from countries where most of the world's Jews and Catholics lived from coming to the United States.

    Again, this law was ostensibly based on nationality, not race or religion. Is there a single reputable historian today who would argue that the real purpose of that law was anything other than the crudest and most obvious racial and religious bigotry against non-"Nordic" immigrants?

    Even reading Donald Trump's latest executive order barring all but a small number of citizens of the six targeted almost 100 per cent Muslim countries just on its face, without taking the history of the order into account at all, one can see more resemblances to the dark days of the Chinese exclusion laws and to the 1924 Immigration Act, based on false and discredited Eugenics theories which led Adolf Hitler to praise that law, not to mention the more recent interment of Japanese-Americans during WW2, than any federal court should feel comfortable with today. We are now in 2017, not 1889, 1924, or 1944 when US v. Korematsu was decided.

    This is the spirit behind both of Trump's Muslim country immigration ban orders, even read only on their face. Now, in the 21st century, should the federal courts deliberately blind themselves to this attempt to go back to America's earlier history of white Protestant supremacy in immigration?

    Even so, if this is what the Trump administration wants to do, it should ask Congress to repeal the 1965 immigration reform law which sought to eliminate racial and religious discrimination in immigration.

    Instead, Donald Trump is attempting to take at least a major first step toward this rollback toward the white supremacy and religious bigotry of these earlier eras in our history by a stroke of a presidential pen.

    Does this attempt meet any rational definition of the words "good faith"? And what does this say about our democracy?

    As an additional comment, I refer to my post in today's ilw.com Letters section commending the president for finally speaking out in support of the two courageous men who gave their lives in Portland while trying to protect a young woman wearing a Muslim headscarf against a deranged attacker who was yelling racial or religious epithets at her.

    The president's comment that the victims stood up against "hate and intolerance" was welcome. A little less hate and intolerance in his Muslim ban executive orders would also be welcome, and it might even help prevent future hate crimes against Muslims and other religious minorities in America.

    Roger Algase
    Attorney at Law
    Updated 05-30-2017 at 09:27 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    The only blindness I see in this situation is Roger's.

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    Roger, two of the countries on the list Trump uses were added by congress and the other five by Obama, and this list is being used to bar European citizens from the Visa Waiver Program because they need additional screening that isn't provided by that program.

    Tell me why your comments do not apply to them too?

    All Trump is saying is that nationals from those countries need additional screening and therefore that he is going to keep them out of the US until the additional screening is available. If you weren't suffering from some form of Trump-hatred insanity, you would have made this comparison without having to have it pointed out to you.


    Nolan Rappaport
  7. ImmigrationLawBlogs's Avatar
    Nolan is the one who is blind here. The "additional screening" is nothing more that a pretext to fulfill a campaign promise to keep as many Muslims from all over the world from coming to the United States as possible. At least the courts have the authority under the good faith doctrine in Mandel to look into that issue.

    By resorting to name calling against me personally, Nolan, who is himself a distinguished legal scholar, is by implication admitting that he is on weak legal grounds in this particular case.

    Does he also think that over a dozen federal appellate and district judges who have ruled against Trump's Muslim ban orders to date (including 9 judges of the 4th Circuit who concurred with Chief Judge Gregory), are also motivated by "Trump-hatred insanity" for making essentially the same points that I have in their decisions?

    Judge Gregory's opinion says that Trump's latest executive order is "dripping" with prejudice and animosity against the Muslim religion.

    Would Nolan call him, and the judges who concurred with him, the same kind of names that he is using against me? I would assume not.

    Roger Algase
    Attorney at Law
    Updated 05-30-2017 at 01:29 PM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    Yes, Roger, I think Judge Gregory and the rest of them are infected by Trump-hatred insanity too. Something is making it impossible for you to think rationally when you are analyzing the travel ban.

    You are fine with the fact that Obama made a finding that people who have visited the countries on the travel ban list need extra screening and therefore cannot participate in the visa waiver program (ever), but when Trump suspends nationals from the same countries from coming here for 90 days to develop extra screening questions you are outraged.

    Incidentally, Obama also extended screening for Syrian nationals to a full two years. Did you attack him as a Muslim hater for doing that? That's a lot worse than a 90 day suspension.

    Nolan Rappaport
  9. ImmigrationLawBlogs's Avatar
    Nolan, there is all the difference in the world between someone who is required to apply for a visa to enter the US, as most people in the world except for a comparative handful of people who are mostly from Europe need to do on the one hand, and on the other hand, someone who is barred by nationality alone from even applying for a visa, whether for 90 days (to begin with) or, as even you would have to admit is more likely, for as long as Donald J. Trump is president.

    And if you want me or others who share my views to agree with your conclusions. I would respectfully suggest that coming up with stronger legal arguments would be more effective than calling people who disagree with you "irrational".

    Roger Algase
    Attorney at Law
  10. ImmigrationLawBlogs's Avatar
    You ignored what I said and set up a false comparison. Try responding to what I said.

    You are fine with the fact that Obama made a finding that people who have visited the countries on the travel ban list need extra screening and therefore cannot participate in the visa waiver program (ever), but when Trump suspends nationals from the same countries from coming here for 90 days to develop extra screening questions you are outraged.

    I call you and the Judge Gregory and associates irrational because you are when it comes to the travel ban and probably other things Trump has done. And maybe on other topics too. I don't know.

    You say, "Judge Gregory's opinion says that Trump's latest executive order is "dripping" with prejudice and animosity against the Muslim religion." I provide a different Gregory quote in my article.

    He found that the stated national security interest in the order was, on its face, a valid reason for the travel ban and, therefore, that it satisfied Mandel’s first requirement. He observed, therefore, that, “Absent allegations of bad faith, our analysis would end here in favor of the Government.”

    In other words, he found no evidence of bad faith in the order. For that, he had to use Trump's campaign statements. This is one of the complaints the dissenters make. Mandel requires evidence of bad faith in the order before going on an expedition into the author's previous statements to establish a basis for a finding of bad faith.

    Searching through a man's previous statements without any indication of bad faith in the order sets up the constitutional crisis I refer to in my article---another point you fail to mention. If you don't need evidence of bad faith in the order, you can use the same campaign statements as proof of bad faith every time Trump writes an executive order that has a negative effect on Muslims, regardless of what the order says or does. He cannot escape the bad faith finding no matter what he does.

    That hamstrings the President of the United States on serious national security issues; destroys free speech during political campaigns; and undermines our democratic form of government.

    And how far will this go? Will you and Gregory be searching through things Trump said in college? When he was a high school student? What about elementary school? And who else are you going to do this to? Congressmen? Mayors? Police chiefs?

    Nolan Rappaport







    Updated 05-30-2017 at 06:59 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    As I have mentioned in one of my own ilw.com posts on this issue, I disagree with Judge Gregory's conclusion that there is no bad faith in the Muslim ban order on its face. Banning 180 million people of a particular religion (again, Judge Gregory's figure) from entering the United States purely on the excuse that the visa background check procedure may need to be refined certainly raises questions about good faith right on the face of the order that a court would be justified in looking into, when an important Constitutional issue such as 1st Amendment establishment of religion or free exercise of religion for potentially millions of American citizens is involved, as it is here.

    But in the Muslim ban lawsuits, there are allegations of bad faith, which are justified by overwhelming evidence, based on Trump's multiple, unequivocal statements and actions, including very recent ones going back less than two years, and in some cases only a few months before Trump took office, as well as actions after the election was over that show an unmistakable bias, if not open hatred, against a particular religion and a promise to keep as many members of that religion out of the United States as possible.

    This is not a matter of going back many years to try to find one or two things that Trump might have said as a purely private person. It is simply a matter of taking him at his word as a president trying to carry out a campaign promise (yes, sometimes even presidents do keep their campaign promises, or attempt to).

    The courts would be abandoning their responsibility as an independent branch of the government to protect the basic religious and other constitutional rights of millions of American citizens if they refuse to recognize the reality of bias and discrimination staring them in the face and coming out of the president's own mouth.

    Everyone in America, in the entire world knows, that the real purpose of Trump's executive orders was to keep as many Muslims as possible out of the US as the courts would allow him to do. When the first seven country ban order was struck down on multiple constitutional issues, Trump withdrew it and replaced it by a second order which one of his top advisers, Stephen Miller, said was meant to serve the same policy goals as the first order.

    He know what those goals were - the president knew - Nolan knows - the world knows. Why should the federal courts alone pretend that they don't know?

    Nolan is also concerned that if the courts take Trump at his word on policy matters, that might limit the president's power as a strongman (my word, not Nolan's). Isn't this what democracy is all about?

    This is not to say that the president might not be entitled to a certain presumption of good faith, especially when he invokes national security. If that is Nolan's argument, it would have some validity in my view.

    But presumptions can be rebutted. I could even agree that in this type of case it might take overwhelming evidence to rebut a presumption of presidential good faith in issuing immigration executive orders. Judge Gregory's decision also recognizes wide presidential latitude in these matters.

    But in this case, the evidence of presidential bad faith, both on the face of the order and in its genesis, is so overwhelming, mostly coming out of the president's own mouth, that the courts cannot ignore it if they intend to preserve our democracy.

    Any presumption that might exist of Donald Trump's good faith with regard to his first or second Muslim country entry ban orders has been rebutted many times over - by Donald Trump.

    Roger Algase
    Attorney at Law
    Updated 05-30-2017 at 08:46 PM by ImmigrationLawBlogs
  12. ILWobserver's Avatar
    As a longtime ILW reader, I can't help but notice Nolan's continued fandom for the travel ban. He's told us on numerous occasions at every turn of this saga how justified the ban is, only to have court ruling after court ruling contradict that viewpoint. Nolan seems to imagine that his identity as non-Muslim(?) non-minority would protect him from the of a hypothetical administration that ignores court rulings. In fact, no one - regardless of status - is safe from any administration that does so. First to be victimized would be helpless refugees, then other immigrants, then minorities, and then eventually anyone who disagrees with even one iota of such an administration's policies. This final group would almost certainly include Nolan himself at some point.
  13. ImmigrationLawBlogs's Avatar
    The above comment is absolutely on point. As Pastor Niemoeller famously said about Nazi Germany (The following is approximate, possibly not his precise words.)

    "First they came for the Socialists, and I was silent, because I was not a Socialist. Then they came for the Jews, and I was silent, because I was not a Jew...

    Then they came for me."

    In this case, Nolan has no problem with banning 180 million Muslims from America, and he even reacts quite strongly when anyone questions Trump's power to do so.

    Suppose we had a different president, not Trump himself, who is clearly not anti-Jewish, but let's say hypothetically, one of his Alt-Right followers who is anti-Semitic.

    Suppose that this hypothetical anti-Semitic president issued an order "temporarily" (ha! ha! ha! - who believes that) banning all citizens of Israel, ostensibly without regard to ethnicity or religion, Jews and Palestinians both, from coming to the United States because of the ongoing religious and ethnic tensions and threats of violence in that country which have been going on for 70 years, ever since Israel became a nation.

    Suppose also that this hypothetical president had also made campaign statements denying the Holocaust and saying that Jews could not really be loyal to America because their first loyalty was to Israel - a vicious anti-semitic slander that used to be common discourse in America not so long ago.

    Would Nolan be arguing in favor of the president's right to ban whomever he wants from America without interference by the courts in such a situation? I rather doubt it.

    Roger Algase
    Attorney at Law
    Updated 05-30-2017 at 09:27 PM by ImmigrationLawBlogs
  14. ILWobserver's Avatar
    The above comment is absolutely on point. As Pastor Niemoeller famously said about Nazi Germany (The following is approximate, possibly not his precise words.)

    "First they came for the Socialists, and I was silent, because I was not a Socialist. Then they came for the Jews, and I was silent, because I was not a Jew...

    Then they came for me."

    This is exactly the quote I was thinking of.
  15. ImmigrationLawBlogs's Avatar
    Roger, we aren't making any progress with our Trump discussions. Nothing will be gained by continuing them.

    Nolan Rappaport
    Updated 05-31-2017 at 12:41 AM by ImmigrationLawBlogs
  16. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ILWobserver
    As a longtime ILW reader, I can't help but notice Nolan's continued fandom for the travel ban. He's told us on numerous occasions at every turn of this saga how justified the ban is, only to have court ruling after court ruling contradict that viewpoint. Nolan seems to imagine that his identity as non-Muslim(?) non-minority would protect him from the of a hypothetical administration that ignores court rulings. In fact, no one - regardless of status - is safe from any administration that does so. First to be victimized would be helpless refugees, then other immigrants, then minorities, and then eventually anyone who disagrees with even one iota of such an administration's policies. This final group would almost certainly include Nolan himself at some point.

    I have explained why I think Trump has the authority to impose such a travel ban, but I have never said that it was a good idea. Unless it was intended to be a diversion, it was a foolish mistake. But the people who have made a big deal of it have made an even more foolish mistake. They should have been paying attention to the other, far more serious provisions in the EO. If they had ignored the travel ban, it would have been over and forgotten by now.

    And the hardship cases would have been taken care of by the waiver provision in the order. The DHS secretary announced a categorical waiver for returning LPRs almost immediately and other categorical waivers would have followed.

    I strongly suggest reading my article, "Trump’s Seven-country Travel Ban Is Just The Tip Of The Iceberg,"
    http://www.huffingtonpost.com/entry/...=1486400484184

    Nolan Rappaport
    Updated 05-31-2017 at 08:54 AM by ImmigrationLawBlogs
  17. ImmigrationLawBlogs's Avatar
    What kind of argument is this? There are still some 180 million Muslims (according to Judge Gregory) who would be barred from coming to the United States under the six-country ban order. Even if a comparative handful of people are eligible for waivers under the latest ban order (only in response to court decisions blocking the original seven-country version, followed by the president's vicious personal attacks on judges who disagreed with his order), that doesn't change the basic intent of the law to ban immigrants mainly or wholly because of their religion.

    I notice that Nolan doesn't talk about immigration law history very often, but it is worth noting that the infamous Chinese exclusion laws of the late 19th and early 20th centuries also had a very significant "waiver" - the laws only excluded Chinese "laborers". Chinese "merchants", who arguably encompassed many millions of people in that vast country, were not excluded from the US.

    Moreover, the exclusion laws only (at the beginning) applied to citizens of one country- China, not to people of Chinese ancestry who were citizens of any other country in the world.

    Yet, the Supreme Court, in the 1889 decision Chae Chan Ping, expressly found that the purpose of the exclusion laws was to exclude by race - and the Court, based on the attitudes of most Americans at that time, upheld those laws!

    Would Nolan argue that the Chinese exclusion laws were not racially motivated merely because there were some exceptions to the ban?

    Even in the case of the shameful 1942 executive order upholding Japanese-American internment - which our Congress and president apologized for by statute four decades later - not all persons of Japanese ancestry in the US were affected - only those living on the West Coast.

    Japanese-Americans in other parts of the US, including Hawaii (where Pearl Harbor had taken place the previous year) were not affected. Does that mean that the Japanese-American internment was not racially motivated?

    There is simply no tenable argument to the effect that the presidential six and seven Muslim country entry ban orders (both of which, according to presidential spokesman Stephen Miller, were meant to serve "similar" policy objectives) were motivated mainly, if not entirely, by anything other than religious "animosity".

    4th Circuit Judge Roger Gregory was absolutely right in making this finding of fact, and so were the more than a dozen other federal judges across America who agreed with him.

    There is no way around this reality.

    I would also add that, with due respect to Nolan as a distinguished immigration law scholar, this discussion is not about Trump personally, about whether one admires him as a president or not.

    It is only about a legal issue - what is the purpose of his entry ban executive orders and other immigration policies. I trust that the discussion will remain on that level.

    Roger Algase
    Attorney at Law
    Updated 06-01-2017 at 10:15 AM by ImmigrationLawBlogs
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