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Letters of the Week: June 19 - June 25

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  1. ImmigrationLawBlogs's Avatar
    POLITICO has a wonderful report dated June 21 on the evident influence that the ancient Greek historian, Thucydides, is having on White House thinking regarding foreign affairs, especially regarding the need to avoid any possible conflict between the US and China.

    While the president himself is not exactly known for his intellectual distinction, it is encouraging to know that at least some of his advisers are learning from the classics, which have so much to teach us about history and human nature. See:

    As a high school student at Phillips Academy, Andover (Mass.) many decades ago, it was my great fortune to be introduced to ancient Greek, but the only historian we read was Xenophon - I have to this day never read anything by Thucydides.

    However, it is never too late to start. At the same time, given whom America now has as president, it would be well worthwhile to bone up on what Plato, Aristotle and other ancient Greek thinkers had to say about how a democracy can turn into tyranny.

    Roger Algase
    Attorney at Law
    Updated 06-21-2017 at 02:24 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    I just reviewed the new 9th circuit travel ban decision. I was puzzled by the fact that it did not apply the supreme court's facially legitimate standard. A computer search of the 86 page decision uncovered a discussion of Mandel in a footnote. Se footnote 9 on page 33, which reads as follows:

    This claim looks at whether the President appropriately exercised his authority under 1182(f) by satisfying its precondition, and whether, and to what extent, his authority under 1182(f) is cabined by other provisions of the INA. Because this challenge does not look at whether “the Executive exercises this [delegated and conditional exercise of] power negatively,” Mandel, 408 U.S. at 770 (emphasis added), nor involves a constitutional challenge by a citizen to a visa denial on the basis of congressionally enumerated standards, id. at 769–70, but rather looks at whether the President exceeded the scope of his delegated authority, we do not apply Mandel’s “facially legitimate and bona fide reason,” id., standard. See Sale, 509 U.S. at 166–77 (reviewing whether the executive order complied with the INA without reference to Mandel’s standard).

    Do you agree with what then court is saying?

    Nolan Rappaport

  3. ImmigrationLawBlogs's Avatar
    Nolan overlooks some essential points.

    First, let us look at the the phrase "facially legitimate and bona fide" which Justice Blackmun set forth as the standard in the 1972 Kleindienst v. Mandel decision holding that the courts did not have the power to look behind a consular officer's decision not to grant a visa.

    Aside from the crucial distinguishing features between Mandel and the facts in Trump's Muslim entry ban litigation (such as, for one, the fact that the visa applicant, Mandel, was determined by the US Consul to have a record of having violated the conditions of a previous US visa - a factor totally absent in the Muslim entry ban litigation), Nolan is asking us to twist the English language in a way that makes no sense whatever.

    He is asking us to read Justice Blackmun's phrase:

    "facially legitimate and bona fide" as if the word "facially" also modifies "bona fide" as well as modifying "legitimate".

    This is untenable. To be "facially" in good faith is a contradiction in term. Very few, if any, legal documents show bad faith on their face.

    The concept of good faith, almost by definition, applies to conduct relating to the purpose and intention behind a document, rather than the plain language of a document itself.

    There are a number of Supreme Court cases on this point, as well as an excellent Harvard Law Review article which I will discuss in an upcoming blog comment.

    Take the case of a marriage declaration. Implied in the declaration, in every society and culture in the world, is the concept of fidelity to one's marriage vows.

    But suppose that, at the time of entering into the marriage ceremony, the groom is already cheating on the bride and he continues to do so throughout the marriage.

    Can he claim that his marriage vows were made in good faith because the vows themselves were in proper form and said nothing about an intention to cheat?

    But this is what Nolan, in essence, is arguing in the Muslim ban case - that merely because Trump's executive orders didn't say: "The president hates" Muslims" , the courts have no power to look at the surrounding circumstances, which as the 4th Circuit majority determined in its opinion, were dripping with "animus" and religious discrimination against Muslims on Donald Trump's part.

    But this is only the beginning of the flaws in Nolan's contention. If he has any argument at all, based on Mandel, that argument is destroyed by Justice Kennedy's plurality opinion (writing for a majority of the Justices who agreed with the result in that case) in Kerry v. Din (2015), another case dealing with a consular visa refusal, where the court applied and interpreted the above quoted phrase in the Mandel case.

    I will show why in a forthcoming blog comment or letter on this point.

    Roger Algase
    Attorney at Law
    Updated 06-24-2017 at 08:18 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I need to correct my previous comment in one respect:

    Justice Kennedy's opinion in Kerry v. Din was a concurring opinion instead of a plurality one, and therefore it is not binding as precedent.

    However, from a technical standpoint, the Supreme Court majority's formulation: facially legitimate and bona fide in Mandel is not binding as precedent on the issue of good faith either, because the question of whether the US Consul acted in good faith in denying Mandel a visa in that case was not before the court.

    There was no allegation that the Consul acted in bad faith in that case.

    In the Muslim ban litigation, the evidence of bad faith, i.e. gross and willful misrepresentation of the reasons for issuing the executive orders involved in those cases was, as one federal district judge put it, "mountainous"

    The fourth Circuit found that Trump's latest Muslim ban order was "dripping" with "animus" and religious discrimination against Muslims.

    Nolan wants the courts to ignore all of this evidence on an expansive theory of presidential power where if the contest is between the Leader's word and the truth, the truth loses.

    There have been and still are countries with that kind of governmental structure - Germany between 1933 and 1945, the former Soviet Union; and, today, Russia (a country which the president admires so much and to which he may owe a very large and special debt of gratitude, if certain allegations which an independent counsel in now looking into turn out to be true).

    North Korea is another country where the truth about any subject is whatever the Dear Leader (or Great Leader or whatever - it is hard to keep track), says it is.

    Fortunately, the United States of America is not such a country - no matter how much our 45th president may be trying to take it in that direction.

    Roger Algase
    Attorney at Law
    Updated 07-05-2017 at 08:33 PM by ImmigrationLawBlogs
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