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Travel ban issue will be moot before SCOTUS date here's why. By Nolan Rappaport

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President Donald Trump filed an appeal with the Supreme Court of adverse decisions in two circuit courts on his March 6 executive order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

He also petitioned the court for a temporary stay of injunctions issued by the circuit courts that had restricted the implementation of the executive order. In a decision on Monday, the court granted the petition in part, staying the injunctions to the extent that they apply to foreign nationals abroad who have no connection to the United States. The stays are in effect only until the case is decided on its merits.

Pertinent precedent

In Kleindienst v. Mandel, the court held that Congress has plenary power to establish policies for the exclusion of aliens from entering the United States, which it can delegate conditionally to the executive branch. When the executive branch has used such authority to exclude aliens “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.

The absolute nature of the delegation at issue in this case is reflected in the language of the statutory provision that conferred it on the president in Section 212(f) of the Immigration and Nationality Act when it was enacted in 1952:

"Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants..."

Are the travel ban issues moot?

Read more at --
http://thehill.com/blogs/pundits-blo...me-court-heres

Published originally on The Hill.

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 an 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.





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Updated 06-28-2017 at 05:02 PM by ImmigrationLawBlogs

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  1. ImmigrationLawBlogs's Avatar
    Nolan's implies that, under the Supreme Court's 1972 decision in the leading case of Kleindienst v. Mandel, the executive's discretion to ban individual immigrants, or entire classes of immigrants, is "absolute".

    There are four problems with this statement, as applied to Trump's Muslim ban orders.

    First, there is a huge difference in the facts.

    Mandel involved an action to seek court review of a visa refusal to a single applicant who, according to allegations which were not refuted, had a negative immigration history of having engaged in activities not permitted by his previous visa on a prior visit to the US.

    The Muslim ban, however, involves excluding almost 200 million people in six countries without any showing of prior visa or other violations that would disqualify them under our law, but who belong to a religion whose members Trump called for a world-wide ban on in December 2015 and attacked as a religion which "hates us". in March 2016 (during a CNN interview).

    No matter how one tries to spin that, it is an enormous factual difference between the two cases.

    Second, Mandel does NOT stand for the proposition that the executive's power over immigration is absolute. as Nolan suggests.

    Mandel contains the requirement that a decision to exclude a foreign citizen from the U.S. must be "facially legitimate and bona fide".

    Nolan writes as if these two requirements amount to the same thing, but they are actually quite different. A legal document can appear legitimate on its face, but can still be used for a deceptive, malicious or fraudulent purpose. No one would argue that such a document is bona fide if the intent is to use it for such a purpose.

    The courts are full of such cases. To take an example from immigration law itself, there have been (unfortunately) many cases where a couple may present marriage documents which are perfectly legitimate on their face, so that one of them can get a green card, but are anything but good faith in their use and purpose, if the underlying relationship is not genuine.

    Third, as if there were any doubt as to what the words "bona fide" meant in Mandel, Justice Kennedy, writing for the Supreme Court plurality (majority of the majority) in 2015, more than 40 years later in Kerry v. Din, explained the meaning of bona fide as anything that was not an "affirmative showing of bad faith".

    But whether or not there is an "affirmative showing of bad faith" in Trump's Muslim ban order is a genuine question of fact, supported by a mountain of evidence, that Trump's ban was motivated by an agenda "dripping" with anti-Muslim animus and religious discrimination, according to the fully explained and documented opinion of an overwhelming majority of the judges of the 4th Circuit Court of Appeals in the same case.

    Nolan argues that the federal courts have no power to look into this huge amount of evidence of animosity and venom against Muslims as members of a religious group, or to determine its weight and value.

    He would be correct in his analysis - if America were Russia or North Korea. But America is not Russia.

    It is not North Korea.

    Finally, Mandel itself has a very troubled and questionable background as a precedent decision. The authorities that it cites for a rigid (though not absolute!) application of the Plenary Power doctrine of excluding the courts from reviewing immigration decisions of the executive branch go all the way back to the dark time of the infamous Chinese exclusion laws beginning in 1882 (see Chae Chan Ping - the "Chinese Exclusion Case" (1887) where the Court praised the open and obvious purpose of the law in question - namely to exclude most members (not all- the Chinese exclusion laws had their exceptions too, just as do Trump's Muslim ban order and the Supreme Court's June 26 decision upholding major parts of it) of one of the world's largest racial groups.

    Similarly, Trump's Muslim ban seeks to do the same with almost 200 million members of one of the world's largest religious groups.

    Relying blindly on the reasoning of Chae Chan Ping and other exclusion law era cases, as the Mandel majority opinion expressly chose to do after an extensive discussion of these cases, is a little like relying on the notorious, and thoroughly discredited 19th century cases of Dred Scott or Plessy v. Ferguson in a case involving the rights of African-Americans.

    One should cite Mandel with a good deal of caution, qualifications, and, above all, accuracy.

    Nolan's analysis of this decision leaves considerable room for improvement and correction in all of these respects.

    These comments, of course only relate to the introduction to Nolan's article, which then goes on to a somewhat different topic.

    My response is not directed to the rest of Nolan's article, most of which deals with the proposed expansion of Trump'
    s "Extreme Vetting."

    This is a related, but separate issue which I might comment on at some other time.

    Roger Algase
    Attorney at Law

    Updated 06-28-2017 at 11:03 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan's implies that, under the Supreme Court's 1972 decision in the leading case of Kleindienst v. Mandel, the executive's discretion to ban individual immigrants, or entire classes of immigrants, is "absolute".

    There are four problems with this statement, as applied to Trump's Muslim ban orders.

    First, there is a huge difference in the facts.

    Mandel involved an action to seek court review of a visa refusal to a single applicant who, according to allegations which were not refuted, had a negative immigration history of having engaged in activities not permitted by his previous visa on a prior visit to the US.

    The Muslim ban, however, involves excluding almost 200 million people in six countries without any showing of prior visa or other violations that would disqualify them under our law, but who belong to a religion whose members Trump called for a world-wide ban on in December 2015 and attacked as a religion which "hates us". in March 2016 (during a CNN interview).

    No matter how one tries to spin that, it is an enormous factual difference between the two cases.

    Second, Mandel does NOT stand for the proposition that the executive's power over immigration is absolute. as Nolan suggests.

    Mandel contains the requirement that a decision to exclude a foreign citizen from the U.S. must be "facially legitimate and bona fide".

    Nolan writes as if these two requirements amount to the same thing, but they are actually quite different. A legal document can appear legitimate on its face, but can still be used for a deceptive, malicious or fraudulent purpose. No one would argue that such a document is bona fide if the intent is to use it for such a purpose.

    The courts are full of such cases. To take an example from immigration law itself, there have been (unfortunately) many cases where a couple may present marriage documents which are perfectly legitimate on their face, so that one of them can get a green card, but are anything but good faith in their use and purpose, if the underlying relationship is not genuine.

    Third, as if there were any doubt as to what the words "bona fide" meant in Mandel, Justice Kennedy, writing for the Supreme Court plurality (majority of the majority) in 2015, more than 40 years later in Kerry v. Din, explained the meaning of bona fide as anything that was not an "affirmative showing of bad faith".

    But whether or not there is an "affirmative showing of bad faith" in Trump's Muslim ban order is a genuine question of fact, supported by a mountain of evidence, that Trump's ban was motivated by an agenda "dripping" with anti-Muslim animus and religious discrimination, according to the fully explained and documented opinion of an overwhelming majority of the judges of the 4th Circuit Court of Appeals in the same case.

    Nolan argues that the federal courts have no power to look into this huge amount of evidence of animosity and venom against Muslims as members of a religious group, or to determine its weight and value.

    He would be correct in his analysis - if America were Russia or North Korea. But America is not Russia.

    It is not North Korea.

    Finally, Mandel itself has a very troubled and questionable background as a precedent decision. The authorities that it cites for a rigid (though not absolute!) application of the Plenary Power doctrine of excluding the courts from reviewing immigration decisions of the executive branch go all the way back to the dark time of the infamous Chinese exclusion laws beginning in 1882 (see Chae Chan Ping - the "Chinese Exclusion Case" (1887) where the Court praised the open and obvious purpose of the law in question - namely to exclude most members (not all- the Chinese exclusion laws had their exceptions too, just as do Trump's Muslim ban order and the Supreme Court's June 26 decision upholding major parts of it) of one of the world's largest racial groups.

    Similarly, Trump's Muslim ban seeks to do the same with almost 200 million members of one of the world's largest religious groups.

    Relying blindly on the reasoning of Chae Chan Ping and other exclusion law era cases, as the Mandel majority opinion expressly chose to do after an extensive discussion of these cases, is a little like relying on the notorious, and thoroughly discredited 19th century cases of Dred Scott or Plessy v. Ferguson in a case involving the rights of African-Americans.

    One should cite Mandel with a good deal of caution, qualifications, and, above all, accuracy.

    Nolan's analysis of this decision leaves considerable room for improvement and correction in all of these respects.

    These comments, of course only relate to the introduction to Nolan's article, which then goes on to a somewhat different topic.

    My response is not directed to the rest of Nolan's article, most of which deals with the proposed expansion of Trump'
    s "Extreme Vetting."

    This is a related, but separate issue which I might comment on at some other time.

    Roger Algase
    Attorney at Law

    Roger, your comments are responsive to the points I make in my article, so I will respond to them.

    Nolan's implies that, under the Supreme Court's 1972 decision in the leading case of Kleindienst v. Mandel, the executive's discretion to ban individual immigrants, or entire classes of immigrants, is "absolute".


    I said, “When the executive branch has used such authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will not look behind the exercise of that discretion.” That sounds absolute to me, and this is supported by the language of the statutory provision that I quoted, section 212(f). If that condition is met, “facially legitimate and bona fide reason,” the exercise of that power is absolute.

    First. Roger says, “Mandel involved an action to seek court review of a visa refusal to a single applicant who, according to allegations which were not refuted, had a negative immigration history of having engaged in activities not permitted by his previous visa on a prior visit to the US.”


    Section 212(f) says the president can “suspend the entry of all aliens or any class of aliens.” That explicitly grants the president the authority to suspend the entry of ALL ALIENS.


    The Muslim ban, however, involves excluding almost 200 million people in six countries without any showing of prior visa or other violations that would disqualify them under our law,


    Roger, show where section 212(f) requires the president to show prior visa or other violations that would disqualify them under our law? It says, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States…”.


    And no attempt is made to define “detrimental to the interests of the United States.” That is left up to the judgment of the president.

    As for the number of aliens Roger claims are effected by the ban, he said a few days ago that the Supreme Court decision was a loss to Trump because it only upheld the 90-day ban for the people from the six countries who would not have been asking for visas anyway. Whereas, the much smaller number of people who actually would be coming to the US can still do it.


    Which is it Roger. Does the 90-day ban hurt 200 million people are just the few thousand who would be able to get a visa to come here but for the ban?

    Second, Mandel does NOT stand for the proposition that the executive's power over immigration is absolute. as Nolan suggests.


    Mandel contains the requirement that a decision to exclude a foreign citizen from the U.S. must be "facially legitimate and bona fide".

    Nolan writes as if these two requirements amount to the same thing, but they are actually quite different. A legal document can appear legitimate on its face, but can still be used for a deceptive, malicious or fraudulent purpose. No one would argue that such a document is bona fide if the intent is to use it for such a purpose.


    Roger is using the “bona fide” qualification as a justification for looking behind the exercise of the president’s discretion whether the language of the order indicates there is a problem or not. And in fact, the fourth circuit court of appeals said the travel ban order is fine and that if it hadn’t been written by Trump, they never would have looked behind it.


    If Roger is right, the courts can look behind every order, regardless of what it says. In other words, the courts can always look behind the order. If that is the case what’s the point of Mandel’s ruling?


    In Trump’s case, the court just looked at his campaign statements and possibly also some tweets, but if Roger is right, they could have gone further. They could have looked into what he said when he was in college or even before. Everything the man ever said or did was fair game for such an inquiry.

    Third, as if there were any doubt as to what the words "bona fide" meant in Mandel, Justice Kennedy, writing for the Supreme Court plurality (majority of the majority) in 2015, more than 40 years later in Kerry v. Din, explained the meaning of bona fide as anything that was not an "affirmative showing of bad faith".


    I read that several times and couldn’t figure out what it means.

    But whether or not there is an "affirmative showing of bad faith" in Trump's Muslim ban order is a genuine question of fact, supported by a mountain of evidence, that Trump's ban was motivated by an agenda "dripping" with anti-Muslim animus and religious discrimination, according to the fully explained and documented opinion of an overwhelming majority of the judges of the 4th Circuit Court of Appeals in the same case.


    But the court can’t get to an evaluation of evidence unless it is permitted to look behind the order.

    Finally, Mandel itself has a very troubled and questionable background as a precedent decision…..


    This reminds me of a joke. A lawyer is arguing a case before the Supreme Court and when a Justice asks him an irrelevant question, he shouts, “Objection! Irrelevant!”


    Whereupon the Justice asks, “To whom are you making that objection?” pointing out that there is no higher authority that the man can take his objection to.


    Mandel is a precedent whether it has a troubled and questionable background or not.

    Nolan Rappaport
    Updated 06-28-2017 at 11:49 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Nothing in Nolan's response deals with my point that the actual legal standard, set forth by the Supreme Court in Kerry v. Din (2015), which is the latest interpretation of Mandel that we have from this Court, is that the courts can go behind the face of a visa denial when there is an "affirmative showing of bad faith".

    This is a standard which numerous federal district and appellate courts have in effect ruled that has been met in the IRAP case. The 4th Circuit, by a 10-3 en bank majority, not just one judge, described the evidence as showing that the real motivation Trump's order was "dripping" with "animus" and religious discrimination against Muslims.

    If this is not an affirmative showing of bad faith entitling the courts to go behind the face of the executive order look into this evidence further, weigh its probity and value, and make a final decision about whether it is persuasive, then nothing is.

    Nothing in the Supreme Court's 90-day order interprets Mandel as precluding this kind of factual examination.

    Nor does Nolan deal with my point that even without the Supreme Court's latest interpretation of Mandel, that decision's own standard: "facially legitimate and bona fide" (emphasis added) necessarily implies going behind a document if an ostensibly legitimate document is in fact being used for an illegitimate or fraudulent purpose.

    The courts are full of cases on this point, both in private litigation and in cases involving the government. If Nolan is unable to find any citations on this by himself, I will be glad to provide him with some.

    Why are Nolan and other defenders of Trump's Muslim ban so anxious to stop the courts from doing their normal job of considering the overwhelming evidence of egregious bad faith in Trump's Muslim ban orders, especially when the Constitutional rights of millions of Americans to the free exercise of their religion on an equal basis with all other religions in America are in play?

    The reason is obvious: they support the purpose of the order (and its even more drastic predecessor, which Trump now wishes that he had never rescinded) - namely to keep as many members of an unpopular religious minority out of this country as possible -because of their religion, rather than anything they have ever said or done.

    Nolan is obviously just as aware of the real purpose of Trump's Muslim ban orders as anyone else on this planet. If he has any doubt about this purpose, then he hasn't been listening very carefully to Donald J. Trump.

    Arguing that Trump has "absolute" power to keep anyone he wants out of the country without regard to the freedoms for American citizens provided in the first and fourteenth amendments to this country's Constitution (which, I respectfully remind Nolan, is the highest law of the land) is an argument for dictatorship, not democracy.

    I would, once again, respectfully remind Nolan that we are now in the year 2017 in America, not 19 A.D. in ancient Rome when the Jews (and Isis followers) were expelled solely by imperial degree; and that the name of America's chief executive is Donald Trump, not Tiberius Claudius Nero.

    The above is not just a rhetorical flourish. When the 9th Circuit originally struck down the president's first travel ban, his first reaction was to threaten to break up that court.

    He has made numerous intemperate personal attacks on judges who have disagreed with him on both immigration and other issues, and he has attacked the independent media as an enemy of the people.

    I will not even get into the criminal law issue of whether, as alleged by some leaders in both parties, the president has been trying to obstruct justice by firing FBI director James Comey and, more recently, threatening to fire special counsel Robert Muller for investigating possibly illegal ties to Russia involving him or his top officials, because these issues are beyond the scope of Trump's entry ban orders, existing or, as Nolan explains in his article, possibly contemplated in the near future.

    But Trump's Muslim ban, and his attempts to defend it in court, have implications that go far beyond strictly immigration issues such as how many Muslims (or, in the future, perhaps other non-white immigrants) will be allowed to enter the United States, or how much good faith and "facial legitimacy" can be found on the head of a pin, as the medieval scholars used to argue about angels.

    What is ultimately at stake in the dispute of Trump's Muslim ban is the extent of presidential power and its limits.

    If this power is absolute, as Nolan contends, in the field of entry to the US by foreign citizens today, what can prevent the president's power from becoming absolute over all aspects of the lives of American citizens tomorrow?

    The 1936 Nuremberg laws in Germany were aimed only against an unpopular minority practicing a religion which shares many common beliefs with Islam.

    See: Rabbi Reuven Firestone, Professor in Medieval Judaism and Islam at Hebrew Union College:

    An introduction to Islam for Jews

    (Jewish Publication Society, 2008)

    But once taking away the rights of Jews (including their citizenship) became the norm, the freedom of all Germans vanished soon afterwards.

    This is not to compare Trump's Muslim ban or other actions against immigrants from non-white parts of the world with the Holocaust.

    Mass exclusion or mass deportation of immigrants belonging to disfavored religious or racial groups are still light years away from extermination and genocide and should not be confused with them.

    But the question remains:

    Could Trump's Muslim ban, taking away the rights of 3 or 4 million Muslim Americans and permanent residents to practice their religion freely without stigma or opprobrium , and to invite their friends and relatives to visit the United States, be the prelude to extinguishing the basis rights and freedoms of all Americans tomorrow?

    That is the real issue raised by Trump's Muslim ban orders and by its defenders', including Nolan's, absolutist view of the president's supposed power to impose this order without any interference by the courts.

    Roger Algase
    Attorney at Law


    Updated 06-29-2017 at 08:58 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    This is just to add one further word in answer to Nolan's insistence, above that even if Mandel is a less than ideal precedent for the exercise of broad presidential power to exclude foreign citizens (which Nolan interprets as absolute power), it is still a precedent.

    But, as I have pointed out, both Mandel and the more recent Kerry v. Din case have placed at least one major limit on the concept of absolute presidential power in this area - namely the requirement that the power be exercised in good faith.

    Was this limit, which Nolan keeps trying to slap or wave away like an annoying fly, just idle surplusage thrown in by the Mandel and Din Courts for rhetorical effect of some sort?

    Or was the good faith limit on presidential power to exclude foreign citizens from our shores put in because the Justices recognized that there were some problems in blindly relying on the Chinese exclusion law cases as precedents for keeping the courts away from review of executive decisions to exclude foreigners?

    The fact that there was, very arguably, some serious soul searching going on among the Mandel majority Justices about how far they wanted to follow the earlier Supreme Court "Plenary Power" decisions dating from the openly bigoted and racially exclusionary laws of the late 19th and early 20th centuries regarding Chinese and other Asian immigrants is evident from a careful reading of Mandel - especially its discussion of Justice Felix Frankfurter's use of the phrase "but the slate is not clean" in discussing these cases in an earlier Supreme Court decision.

    I have already written extensively about the Mandel decision on this site. I will continue with a further discussion of that case in another forthcoming comment.

    This discussion will make clear that Mandel was a complex decision in which the majority Justices showed some serious signs of doubting how far they wanted to pursue the idea of total presidential power over entry by foreign citizens without any interference by the courts.

    The key words in that decision: "facially legitimate and bona fide (once again, emphasis added) can only be properly understood in the light of the full decision.

    Cherry-picking these words out of context does not contribute to a full understanding of their real meaning.

    Roger Algase
    Attorney at Law
    Updated 06-29-2017 at 10:09 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Roger says, "What is ultimately at stake in the dispute of Trump's Muslim ban is the extent of presidential power and its limits."If this power is absolute, as Nolan contends, in the field of entry to the US by foreign citizens today, what can prevent the president's power from becoming absolute over all aspects of the lives of American citizens tomorrow?"

    Roger, the president is the commander and chief of the armed forces. He has access to the button that can launch our nuclear missiles at any target he chooses. He can order Navy SEALS to go anywhere in the world to assassinate our enemies. And so on. The power of the presidency is amazingly vast.

    Why are you obsessing over his much less significant power to keep aliens from entering the United States if he thinks letting them in would be detrimental to national interests?

    Nolan Rappaport
    Updated 06-29-2017 at 05:40 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    This is just to add one further word in answer to Nolan's insistence, above that even if Mandel is a less than ideal precedent for the exercise of broad presidential power to exclude foreign citizens (which Nolan interprets as absolute power), it is still a precedent.

    But, as I have pointed out, both Mandel and the more recent Kerry v. Din case have placed at least one major limit on the concept of absolute presidential power in this area - namely the requirement that the power be exercised in good faith.

    Was this limit, which Nolan keeps trying to slap or wave away like an annoying fly, just idle surplusage thrown in by the Mandel and Din Courts for rhetorical effect of some sort?

    Or was the good faith limit on presidential power to exclude foreign citizens from our shores put in because the Justices recognized that there were some problems in blindly relying on the Chinese exclusion law cases as precedents for keeping the courts away from review of executive decisions to exclude foreigners?

    The fact that there was, very arguably, some serious soul searching going on among the Mandel majority Justices about how far they wanted to follow the earlier Supreme Court "Plenary Power" decisions dating from the openly bigoted and racially exclusionary laws of the late 19th and early 20th centuries regarding Chinese and other Asian immigrants is evident from a careful reading of Mandel - especially its discussion of Justice Felix Frankfurter's use of the phrase "but the slate is not clean" in discussing these cases in an earlier Supreme Court decision.

    I have already written extensively about the Mandel decision on this site. I will continue with a further discussion of that case in another forthcoming comment.

    This discussion will make clear that Mandel was a complex decision in which the majority Justices showed some serious signs of doubting how far they wanted to pursue the idea of total presidential power over entry by foreign citizens without any interference by the courts.

    The key words in that decision: "facially legitimate and bona fide (once again, emphasis added) can only be properly understood in the light of the full decision.

    Cherry-picking these words out of context does not contribute to a full understanding of their real meaning.

    Roger Algase
    Attorney at Law
    Quick reply. I have never said that "bona fide" is not part of the standard.

    Kennedy's "Concurring Opinion" in Din evaluates a consular officer's visa denial, not a 212(f) presidential proclamation which only requires the president to have found that the admission of aliens would be detrimental to America's interests, and Trump has given a strong enough justification for his finding that the fourth circuit said it would not have done anything with the order if it had not been written by Trump.

    You may disagree with the stated justification, but that doesn't mean that it is inadequate. The most you can establish is that it's not his only or even primary reason, but that doesn't change the fact that the order contains a reason that is legitimate and bona fide.

    I think it also is worth emphasizing that no court has found that the order itself discriminates on the basis of religion. The reasoning seems to be, "Trump is a bigot. Ergo, regardless of what the order says or does, it must be bad because bigots do bad things."

    As I have said previously, if the courts can disregard a legitimate bona fide reason and go on a fishing expedition to find other reasons that can be used to discredit the order, Mandel has no meaning. Any order can be challenged that way, so the courts always have the option of looking beyond the order, regardless of what the order says or does.

    Nolan Rappaport
    Updated 06-29-2017 at 10:10 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    Nolan is right that Justice Kennedy's opinion in Kerry v. Din (2015) setting forth the doctrine that the courts have the power to look behind an executive decision or order denying a foreign citizen o citizens entry to the US when there is an affirmative showing of bad faith is a concurring opinion, not a plurality opinion as I mistakenly wrote above.

    The plurality opinion was by Justice Scalia and did not discuss the issue of good faith.

    I stand corrected and apologize to ID readers for my error.

    Therefore, Nolan is correct in stating that Justice Kennedy's statement has no precedent value.

    This, however, does not affect my point, also made above, that the Mandel standard requiring that that such a decision or order must be facially legitimate and bona fide in order to avoid judicial scrutiny necessarily implies that judges have the power to look behind a facially legitimate executive branch decision or order when there is conduct of a party surrounding or relating to that order which raises a legitimate question of bad faith.

    Roger Algase
    Attorney at Law
    Updated 06-30-2017 at 08:31 AM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan is right that Justice Kennedy's opinion in Kerry v. Din (2015) setting forth the doctrine that the courts have the power to look behind an executive decision or order denying a foreign citizen o citizens entry to the US when there is an affirmative showing of bad faith is a concurring opinion, not a plurality opinion as I mistakenly wrote above.

    The plurality opinion was by Justice Scalia and did not discuss the issue of good faith.

    I stand corrected and apologize to ID readers for my error.

    Therefore, Nolan is correct in stating that Justice Kennedy's statement has no precedent value.

    This, however, does not affect my point, also made above, that the Mandel standard requiring that that such a decision or order must be facially legitimate and bona fide in order to avoid judicial scrutiny necessarily implies that judges have the power to look behind a facially legitimate executive branch decision or order when there is conduct of a party surrounding or relating to that order which raises a legitimate question of bad faith.

    Roger Algase
    Attorney at Law
    I agree that it must be possible in some situation to consider evidence of bad faith. The point I have been trying to make is that if the courts do not need an indication of bad faith in the order itself to justify looking behind the order, they can always look behind the order for evidence of bad faith regardless of what it says or does.

    I also think the bad faith has to apply to the reason given for excluding the aliens. I don't think it matters if the president has other reasons too if the reason given is bona fide. There is no basis for doubting that Trump really does want to restrict immigration from the six countries because they have the ties to terrorism he describes in the order. Roger and his other critics are saying that he wants to exclude them for other, unacceptable reasons too.

    Consider sham marriages. A marriage is a sham for immigration purposes if it was entered into primarily for the purpose of getting an immigration benefit for the alien spouse. If the immigration benefit was only one of their reasons and it wasn't the primary one, it doesn't make the marriage a sham.

    Nolan Rappaport
    Updated 06-30-2017 at 09:14 AM by ImmigrationLawBlogs
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