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Supreme Court will not consider evidence of religious discrimination in its travel ban decision. By Nolan Rappaport

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CNN.COM
President Donald Trump filed an appeal with the Supreme Court from adverse decisions in two circuit courts on the revised version of his travel ban Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”


If the Court decides this appeal on its merits, which I do not expect the Court to do, the most controversial issue will be the claim that Trump is using a national security reason for the travel ban to cover up his real purpose, religious discrimination, and, therefore, the Executive Order violates the First Amendment’s Establishment Clause.


Even if Trump had hostility towards the Muslim religion in his heart when he decided to write the travel ban, it is not the reason he stated in the Executive Order, and the travel ban opponents have not established a legitimate basis for rejecting the stated reason.


The test is whether permitting the banned aliens to enter the United States would be detrimental to the interests of the United States.


Trump issued the travel ban order pursuant to section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:

(f) 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, or impose on the entry of aliens any restrictions he may deem to be appropriate.

May not need to state a reason at all.

In Kleindienst v. Mandel, the Court observed that, without exception, it has sustained Congress’ “plenary power to make rules for the admission of aliens.” And, “The power of Congress .... to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Page 408 U. S. 766)

Read more at
http://www.huffingtonpost.com/entry/...b0f078efd9894c

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 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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  1. ImmigrationLawBlogs's Avatar
    Nolan, writing with his usual clear and reasoned style, has given a well ordered and highly reasonable explanation of the Nolan Rappaport standard for judicial review of presidential or executive orders or decisions to refuse visas or otherwise bar foreign citizens from America's shores.

    Now that he has so clearly explained his own rule in this area, I am looking forward to seeing if Nolan might also be planning to write an article about the United States Supreme Court's rule for avoiding judicial review of an executive or presidential decision of this nature. This rule, as Nolan himself states but does not discuss in any great detail, was enunciated by the Court's majority in Mandel.

    It states, that in order to avoid judicial scrutiny, the executive (or, by extension presidential) decision (in that case, a visa refusal to a single person with a cloudy US immigration history in that case - not a ban against entry by almost 200 million people who all belong to the same religion, even if they have no negative immigration history whatsoever) must be facially legitimate and bona fide.

    Nothing in Nolan's explanation deals with the meaning or applicability of the good faith standard to Trump's Muslim ban order, even though those two short words (in either Latin or English as one chooses) are mentioned (as dictum, since good faith was not at issue in the Mandel decision - see below, and questions of good faith are indisputably at the heart of the questions surrounding Trump's Muslim ban orders.

    I looking forward to your future article so you can discuss this point, Nolan, since good faith is the essential issue in this case and all of the other federal court cases dealing with the Muslim ban orders, and you don't seem to have very much to say about it in your above article.

    Roger Algase
    Attorney at Law
    Updated 07-02-2017 at 09:00 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan, writing with his usual clear and reasoned style, has given a well ordered and highly reasonable explanation of the Nolan Rappaport standard for judicial review of presidential or executive orders or decisions to refuse visas or otherwise bar foreign citizens from America's shores.

    Now that he has so clearly explained his own rule in this area, I am looking forward to seeing if Nolan might also be planning to write an article about the United States Supreme Court's rule for avoiding judicial review of an executive or presidential decision of this nature. This rule, as Nolan himself states but does not discuss in any great detail, was enunciated by the Court's majority in Mandel.

    It states, that in order to avoid judicial scrutiny, the executive (or, by extension presidential) decision (in that case, a visa refusal to a single person with a cloudy US immigration history in that case - not a ban against entry by almost 200 million people who all belong to the same religion, even if they have no negative immigration history whatsoever) must be facially legitimate and bona fide.

    Nothing in Nolan's explanation deals with the meaning or applicability of the good faith standard to Trump's Muslim ban order, even though those two short words (in either Latin or English as one chooses) are at the heart of the Mandel decision and at the heart of the questions surrounding Trump's Muslim ban orders.

    I looking forward to your future article so you can discuss this point, Nolan, since good faith is the essential issue in this case and all of the other federal court cases dealing with the Muslim ban orders, and you don't seem to have very much to say about it in your above article.

    Roger Algase
    Attorney at Law
    As I have explained previously, there are two possibilities with respect to "bona fide." First, the courts can look beyond the language of the order if they find reason in it to doubt the bona fides of a stated reason, something which did not occur in this case.

    Second, Roger's interpretation, which is that the courts always can look for other possibilities beyond the language of the order, regardless of what it says or does. This would make Mandel's limitation on courts looking behind the order meaningless.

    Nolan Rappaport

  3. ImmigrationLawBlogs's Avatar
    Nolan is just playing word games with the term "good faith" (bona fide) in order to give it an artificially narrow meaning.

    Moreover, Nolan's claimed Mandel 'limitation" on the power of the courts to look into issues of good faith is merely what lawyers call "dictum", because good faith was not an actual issue before the court in Mandel. There was no allegation of bad faith in the decision to deny a visa in that case.

    Nolan's argument is that unless the president's executive order shows bad faith on its surface (e.g. "I, Donald J. Trump, the President of the United States of America, am issuing this Executive Order because I hate and despise all Muslims and cannot tolerate the idea of letting a single additional one into this country", the courts have no power to look into extrinsic evidence of bad faith in issuing the order.

    I am not aware of any Supreme Court or other decision where American courts have used such a narrow, tortured definition of this term "good faith". Even if there were such an unreasonably, artificially narrow, decision or decisions, is it consistent with our democracy and the rule of law in America for the courts to turn a blind eye toward such extrinsic evidence of bad faith when fundamental rights of millions of AMERICANS such as freedom of religion (1st Amendment) and equal protection of the law to members of all religious groups (14th Amendment) are at stake?

    Roger Algase
    Attorney at Law
    Updated 07-02-2017 at 09:07 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan is just playing word games with the term "good faith" (bona fide) in order to give it an artificially narrow meaning. His argument is that unless the president's executive order shows bad faith on its surface (e.g. "I, Donald J. Trump, the President of the United States of America, am issuing this Executive Order because I hate and despise all Muslims and cannot tolerate the idea of letting a single additional one into this country", the courts have no power to look into extrinsic evidence of bad faith in issuing the order.

    I am not aware of any Supreme Court or other decision where American courts have used such a narrow, tortured definition of this term "good faith". Even if there were such an unreasonably, artificially narrow, decision or decisions, is it consistent with our democracy and the rule of law in America for the courts to turn a blind eye toward such extrinsic evidence of bad faith when fundamental rights of millions of AMERICANS such as freedom of religion (1st Amendment) and equal protection of the law to members of all religious groups (14th Amendment) are at stake?

    Roger Algase
    Attorney at Law
    Roger is misrepresenting my position. My point is that the order has to indicate bad faith, not show it. In the present case, the fourth circuit district court made a specific finding that the order does not in any way indicate bad faith:

    It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation (page 30).

    If the courts are free to look behind the order when there is no indication of bad faith in the order, what does Mandel mean?

    Nolan Rappaport



  5. ImmigrationLawBlogs's Avatar

    As I have mentioned both above and below, any alleged prohibition in Mandel to looking beyond the face of a document in order to determine whether it is being used fro a good faith purpose is only dictum, and is not binding on the courts anyway.

    But by referring to the general requirement of good faith in an executive branch decision to deny a visa or bar one or more foreign citizens from the United States on any grounds, Mandel merely restates something which has long been part of American law - namely that parties to a lawsuit are required to show good faith before the courts in their conduct regarding the transaction at issue, not just in the way a particular document is drafted.

    In view of the finding by numerous federal courts that, in the words of one federal judge (I think it was in a district court in Seattle, if I remember correctly), the evidence of bad faith in the inception of the Muslim ban was "mountainous"; and in the words of an overwhelming majority of the full 4th Circuit, even Trump's second Muslim ban order had a history which was "dripping" with "animus" (i.e. hatred) and prejudice against Muslims and their religion; and in view of the fact that Constitutional rights of millions of Americans are involved in the Muslim ban litigation, does it make any sense to grasp around for desperate, tortured technical arguments to try to consign this huge amount of evidence, which the president himself is not trying to hide, but has actually been in effect boasting about in some of his latest tweets, to an Orwellian memory hole, as Nolan would have the courts do?

    If the Supreme Court were to agree to such a travesty, merely because of one misinterpreted phrase in the Mandel decision, which relied on less than the strongest imaginable precedents (going back to the infamous Chinese exclusion law whose malevolent spirit of racial/religious hatred Trump is trying to revert to with his Muslim ban) and which decision had nothing to do with trying to ban an entire major world religion from our shores, then America's Constitution, and our democracy, would be in very serious danger.

    This is not to say that it might not happen, given the composition of today's Supreme Court. But, perhaps in large part because of the somewhat more expansive definition of "bad faith" that Justice Kennedy propounded in his concurring opinion in the subsequent Kerry v. Din case (2015), namely that the courts have the power to intervene when there is a "affirmative showing" of bad faith (even outside the four corners of the decision involved), I don't think that Nolan should be so sure of Trump's being able to get five Justices on his side if this matter is actually decided by the Court in its upcoming October term.

    Roger Algase
    Attorney at Law
    Updated 07-02-2017 at 09:15 AM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    To comment further about the concepts of "good faith" and "bad faith" as recognized by the law, there is no doubt, that as a recent Harvard Law Review article discusses in great detail, see David E. Pozen: Constitutional Bad Faith, 129 Harvard Law Review 885 (2016), this is a somewhat "slippery" concept.

    But, as Pozen's article and its citations too numerous to mention make clear, good faith or bad faith is rarely, if ever, something that can be determined from the language of a document alone.

    If anything is clear about this concept, good faith or bad faith is something that can only be determined in the actual dealings of the parties, and whather their conduct, taken as a whole, is honest and sincere or not.

    Arguing that this is something that can be determined by looking at the language of a legal document only, without reference to outside circumstances, is absurd.

    There is no indication Nolan can point to that the Mandel Court intended to change or disregard this commonly understood definition of good faith, as contained in numerous court decisions dealing at all levels with a great variety of issues and subject matter, as cited in Pozen's above article.

    Roger Algase
    Attorney at Law
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    In view of the finding by numerous federal courts that, in the words of one federal judge (I think it was in a district court in Seattle, if I remember correctly), the evidence of bad faith in the inception of the Muslim ban was "mountainous"; and in the words of an overwhelming majority of the full 4th Circuit, even Trump's second Muslim ban order had a history which was "dripping" with "animus" (i.e. hatred) and prejudice against Muslims and their religion; and in view of the fact that Constitutional rights of millions of Americans are involved in the Muslim ban litigation, does it make any sense to grasp around for desperate, tortured technical arguments to try to consign this huge amount of evidence, which the president himself is not trying to hide, but has actually been in effect boasting about in some of his latest tweets, to an Orwellian memory hole, as Nolan would have the courts do?

    If the Supreme Court were to agree to such a travesty, merely because of one misinterpreted phrase in the Mandel decision, which relied on less than the strongest imaginable precedents (going back to the infamous Chinese exclusion law whose malevolent spirit of racial/religious hatred Trump is trying to revert to with his Muslim ban) and which decision had nothing to do with trying to ban an entire major world religion from our shores, then America's Constitution, and our democracy, would be in very serious danger.

    This is not to say that it might not happen, given the composition of today's Supreme Court. But, perhaps in large part because of the somewhat more expansive definition of "bad faith" that Justice Kennedy propounded in his concurring opinion in the subsequent Kerry v. Din case (2015), namely that the courts have the power to intervene when there is a "affirmative showing" of bad faith (even outside the four corners of the decision involved), I don't think that Nolan should be so sure of Trump's being able to get five Justices on his side if this matter is actually decided by the Court in its upcoming October term.

    Roger Algase
    Attorney at Law
    PLEASE STOP COMMENTING ON MY ARTICLES IF YOU CANNOT LEAVE THESE ABSURD TRUMP ALLEGATIONS OUT OF YOUR COMMENTS.

    Nolan Rappaport
  8. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    To comment further about the concepts of "good faith" and "bad faith" as recognized by the law, there is no doubt, that as a recent Harvard Law Review article discusses in great detail, see David E. Pozen: Constitutional Bad Faith, 129 Harvard Law Review 885 (2016), this is a somewhat "slippery" concept.

    But, as Pozen's article and its citations too numerous to mention make clear, good faith or bad faith is rarely, if ever, something that can be determined from the language of a document alone.

    If anything is clear about this concept, good faith or bad faith is something that can only be determined in the actual dealings of the parties, and whather their conduct, taken as a whole, is honest and sincere or not.

    Arguing that this is something that can be determined by looking at the language of a legal document only, without reference to outside circumstances, is absurd.

    There is no indication Nolan can point to that the Mandel Court intended to change or disregard this commonly understood definition of good faith, as contained in numerous court decisions dealing at all levels with a great variety of issues and subject matter, as cited in Pozen's above article.

    Roger Algase
    Attorney at Law
    Are you ever going to respond to what I am saying? I have asked many times for an answer to this question.

    If the courts are free to look behind the order when there is no indication of bad faith in the order, what does Mandel mean?

    Nolan Rappaport
  9. ImmigrationLawBlogs's Avatar
    The obvious meaning of Mandel is twofold, if this decision is to make any sense at all, as follows. In order to avoid judicial scrutiny, a decision or order barring one or more foreign citizens from entering the US must be:

    a) facially legitimate and
    b) in good faith.

    Nolan is so evidently anxious to defend Trump at all costs despite Trump's own record of egregious and sustained anti-Muslim "animus", to use the 4th Circuit's term, or venom, to use plainer speech, as recited in great detail by a number of Federal judges (and which issue was left open by the Supreme Court majority in its June 26 decision, which did not rule one way or another on this point until the October term) that Nolan is apparently willing to distort the above Supreme Court decision (Mandel) in order to make it say something that it did not say and could not have reasonably said, consistent with the well settled legal principle that good faith or bad faith can normally be determined only by looking beyond a given document (of any kind) into the external conduct of the parties.

    That, based on the many authorities cited in the Harvard Law Review article I have mentioned, is the normal meaning of the term "good faith".

    It would be quite a stretch to argue that Mandel meant to change or cast aside the long legal history of these words by, as Nolan contends, cutting off judicial review of an executive decision unless the bad faith is so egregious that it is apparent right on the face of the document (as is, in fact the case with Trump's Muslim ban orders - but this is a separate issue beyond the scope of my comment here, and it is in any event extremely rare).

    The whole point of bad faith documents is that they are almost always drafted to look like good faith ones on the surface - again I refer to Pozen's above article and its citations.

    Nolan can rely on giant size font to buttress his arguments as much as he wants. I prefer to rely on legal scholarship of the kind shown in the Harvard Law Review article above.

    And, in closing, if there is any ambiguity or room for misunderstanding in Mandel's phrase "facially legitimate and bona fide," Justice Kennedy has offered a clarification in his concurring opinion in Kerry v. Din (2015) where he used the phrase "affirmative showing of bad faith" instead.

    This phrase, which clearly does not preclude court review of a "a facially legitimate" document offered or used for a bad faith purpose, is not binding; but as I have pointed out above, it would be surprising if Kennedy does not follow his own formulation if this issue actually comes up for a decision in this fall's term.

    And if Kennedy does follow his own previous view (since not even our president has the power to push him off the Court, even though Trump has threatened to break up the 9th Circuit over the Muslim ban issue), that will be the end of Trump's Muslim ban, at least for this time around.

    Roger Algase
    Attorney at Law
    Updated 07-01-2017 at 11:06 PM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    The obvious meaning of Mandel is twofold, if this decision is to make any sense at all, as follows. In order to avoid judicial scrutiny, a decision or order barring one or more foreign citizens from entering the US must be:

    a) facially legitimate and
    b) in good faith.

    Nolan is so evidently anxious to defend Trump at all costs despite Trump's own record of egregious and sustained anti-Muslim "animus", to use the 4th Circuit's term, or venom, to use plainer speech, as recited in great detail by a number of Federal judges (and which issue was left open by the Supreme Court majority in its June 26 decision, which did not rule one way or another on this point until the October term) that Nolan is apparently willing to distort the above Supreme Court decision (Mandel) in order to make it say something that it did not say and could not have reasonably said, consistent with the well settled legal principle that good faith or bad faith can normally be determined only by looking beyond a given document (of any kind) into the external conduct of the parties.

    That, based on the many authorities cited in the Harvard Law Review article I have mentioned, is the normal meaning of the term "good faith".

    It would be quite a stretch to argue that Mandel meant to change or cast aside the long legal history of these words by, as Nolan contends, cutting off judicial review of an executive decision unless the bad faith is so egregious that it is apparent right on the face of the document (as is, in fact the case with Trump's Muslim ban orders - but this is a separate issue beyond the scope of my comment here, and it is in any event extremely rare).

    The whole point of bad faith documents is that they are almost always drafted to look like good faith ones on the surface - again I refer to Pozen's above article and its citations.

    Nolan can rely on giant size font to buttress his arguments as much as he wants. I prefer to rely on legal scholarship of the kind shown in the Harvard Law Review article above.

    And, in closing, if there is any ambiguity or room for misunderstanding in Mandel's phrase "facially legitimate and bona fide," Justice Kennedy has offered a clarification in his concurring opinion in Kerry v. Din (2015) where he used the phrase "affirmative showing of bad faith" instead.

    This phrase, which clearly does not preclude court review of a "a facially legitimate" document offered or used for a bad faith purpose, is not binding; but as I have pointed out above, it would be surprising if Kennedy does not follow his own formulation if this issue actually comes up for a decision in this fall's term.

    And if Kennedy does follow his own previous view (since not even our president has the power to push him off the Court, even though Trump has threatened to break up the 9th Circuit over the Muslim ban issue), that will be the end of Trump's Muslim ban, at least for this time around.

    Roger Algase
    Attorney at Law
    Roger still isn't answering my question, and he is still relying on a concurring opinion from Din which is just dicta. I give up.

    Nolan Rappaport
  11. ImmigrationLawBlogs's Avatar
    Nolan's above comment make no sense whatsoever. The statement in Mandel which Nolan incorrectly construes as limiting examination of good faith issues to only the face of a legal document, without regard to a party's conduct or motivation relating to the document, is also DICTUM, for the reasons I explain below.

    Even though the statement in Mandel came from the majority opinion, not a concurrent one as in the case of Justice Kennedy's clearer and fuller statement in Din four decades later, both statements are dicta, and neither one is any more binding, or has any greater force as precedent than the other.

    Nolan indeed seems to be giving up - on any serious attempt to understand and interpret the words facially legitimate and bona fide, as used (also, quite obviously, as dictum only, see below) instead of just endlessly repeating this phrase out of context as a sort of mantra to support one's pre-conceived views, in this often cited, but distinguishable 1972 Supreme Court case.

    Above, I have cited a lengthy and extensively researched recent Harvard Law Review article loaded with citations indicating that, in American law, the term "good faith" normally means examining a person's conduct relating to a document, not just the text of a legal document by itself.

    There is no indication that I have been able to find in Mandel that the Court, in its above mentioned dictum, intended to redefine the meaning of "good faith" as it has been understood in our law for a very long time - as Posen's article shows.

    With regard to Justice Kennedy's gloss on this term, stated some four decades after Mandel, I have not argued that it is binding, but I have argued that, very reasonably Kennedy himself might very possibly follow his own interpretation of this term issued only 2 years ago in Kerry v. Din, if the issue of the president's good faith in the Muslim ban orders is ever actually decided by the Supreme Court later this year or next year.

    My point is simply that if Kennedy sticks to his own, highly reasonable and well-supported view that the courts have the power to look into any "affirmative showing of bad faith", then Trump's Muslim ban is in very deep trouble, because it cannot survive without Kennedy's vote.

    Is this observation on my part unreasonable? Are my references to the copious legal history of the term "good faith" as expounded at great length by a Harvard law scholar, unfounded or mistaken?

    If so, I cordially invite Nolan, in keeping with his own status and reputation as a distinguished immigration law scholar, to explain why, rather than simply giving up on the discussion.

    In conclusion, on the issue of good faith I am sure that a legal scholar of Nolan's unquestioned caliber and standing will agree with me that even legal precedents that are far more extensively reasoned or explained than the term "bona fide" , is in Mandel, can be and often are distinguished from a case that is actually before the court on various grounds.

    Every first year law student who has been in law school for more than a week or two knows this.

    How is Mandel distinguishable from IRAP v. Trump, which is currently before the Supreme Court, when the issue of good faith is concerned?


    The distinction should be obvious, even to the above hypothetical first year law student. In Mandel, there was no claim made or evidence produced of bad faith in the part of the visa officer who refused the visa application of the person involved (Mandel).

    Since bad faith was not actually at issue in that case, the "magic" five word mantra on which Nolan so heavily relies: facially legitimate and bona fide, was also dictum, not the actual basis for the decision.


    Moreover, unlike the fact pattern in Mandel, the litigation over Trump's Muslim bans has centered on the issue of bad faith right from the start up to now - based on what one federal judge justifiably referred to a a "mountain" of evidence, most of it coming out of the president's own mouth (and Twitter account) that the Muslim ban was in bad faith, presented as a national security measure when the real purpose was, as the Chief Judge of the 9th Circuit stated, "dripping" with "animus" against Muslims and their religion.

    In Plato's dialogue Euthyphro, a well known Athenian citizen by that name tells Socrates that he, Euthyphro, is about to file a lawsuit against his (Euthypho's) own father.

    Socrates replies:

    "Your own father, you excellent fellow!"

    (Ho sos, o beltiste, in the original Greek)

    In the same ironic sense that Plato puts into the mouth of Socrates in this dialogue, one might claim that Donald Trump, the president of the United States of America, has come up with an "excellent" Muslim ban and an even more "excellent" defense of it before the Supreme Court and other federal courts.

    If, by any of my comments indicating some disagreement with the president's views on immigration or questions about his motives, I have given offense to Nolan's sensibilities regarding our nation's president, whom Nolan seems to regard as being beyond criticism, then I offer all due apologies and condolences to Nolan.

    Updated 07-02-2017 at 05:01 PM by ImmigrationLawBlogs
  12. ImmigrationLawBlogs's Avatar
    Roger questions everything Trump does that impacts immigrants generally or Muslim immigrants in particular because he thinks Trump hates immigration generally and Muslims in particular.

    I question everything Roger says about Trump because Roger hates Trump.

    Nolan Rappaport
    Updated 07-02-2017 at 10:53 AM by ImmigrationLawBlogs
  13. ImmigrationLawBlogs's Avatar
    This isn't about the meaning of "bona fide." It's about WHEN the courts can look behind an executive order. According to Roger, the courts can do this whenever someone produces evidence of bad faith, regardless of what the order says or does. In other words, the courts always can "peak behind the curtain." That clearly is not what Mandel stands for.

    In fact, Roger's interpretation would allow the courts to block any action Trump takes as president that impacts Muslim countries or individual Muslims.

    Nolan Rappaport
  14. ImmigrationLawBlogs's Avatar
    With regard to Mandel, as I suggested before, there are crucial distinctions between that case and the lawsuits involving Trump's Muslim ban.

    I think they are crucial ones so, at the risk of repeating myself, I will go through them again, since I have written about Mandel on this site before. I will do so in a separate comment of my own.

    I now turn to why I have such strong objections to Donald Trump's statements and actions affecting Muslim immigrants and why I believe that these statements and actions are dangerous for the rights and freedom of all Americans, not just Muslim immigrants

    In March, 2016, during the presidential campaign, Trump said on a CNN interview:

    "I think Islam hates us."

    In December, 2015, Trump called for a ban on every Muslim in the world from entering the US. If I am correct, this even initially included US citizens, though this part evidently was dropped at some point.

    If I am wrong, and Trump did not in fact make those statements, or if he ever retracted them, I would request Nolan to provide details so as to correct me. Otherwise, how can Nolan or any other rational person possibly claim that Trump has never expressed hatred for Muslims?

    However, I will give Nolan credit for pointing out that I do need to make one important clarification. By focusing on Trump's anti-Muslim statements, which a 10-3 majority of the 4th Circuit recently described as "dripping" in "animus" and religious prejudice, I may have given an erroneous impression that Muslim immigrants are the only ones whom Trump has expressed hatred and venom of the most vile and despicable sort against.

    That is definitely not true, and I apologize if I have given the impression that Muslim immigrants are the only ones whom Trump has viciously and unconscionably attacked. Certainly, Mexican immigrants, whom Trump has demonized as "criminals", "rapists" drug dealers and gang members, and other Latino immigrants are in this category too.

    South Asian immigrants, especially high skilled workers from India, are under threat of seeing their H-1B visas disappear under Trump though, fortunately, that hasn't happened yet.

    And, perhaps most abominable and reprehensible of all, Trump is now betraying Christian Iraqi immigrants whom he earlier promised to protect from persecution in the Middle East and whose communities in America strongly supported and applauded his victory in the electoral college last year (while being resoundingly defeated in the popular vote by Hillary Clinton).

    Right now, over 1,000 of these immigrants are in limbo, prevented only by the temporary order of a Detroit federal judge, from being sent back to what every commentator I have read seems to agree is acute danger of death, torture or even genocide at the hands of ISIS or other Muslim extremists whom Trump promised to eliminate as a threat to the entire world.

    http://www.nbcnews.com/news/us-news/...by-ice-n777696

    Thank you, Nolan, for giving me the chance to clarify that while Trump unquestionably hates Muslims, his hatred of minority immigrant groups does not any means end there.

    Since this blog is not about domestic policy, I will not mention the millions of middle class and less well-off Americans, both white and minority, whom the Trump administration, joined by other elements of the Republican party which he leads, is also turning into objects of Trump's cruelty, hatred and contempt, as shown by his trying to take away their health insurance, social safety net, and, through Trump's obscene "voter fraud commission" chaired by Americas' leading vote suppression expert, Kris Kobach, their voting rights. Concerning Trump's budget, which amounts to a virtual war against less affluent Americans, see:

    https://www.bloomberg.com/news/artic...verty-programs

    Can anyone who cares about America and our democracy just sit back and say nothing while these abuses against minorities, the less affluent, and, last but not least, women, of every ethnicity, color, religion and citizenship, including American citizens - anyone whom Trump despises as "weak" - take place before our very eyes?

    To get back to the subject of Muslim immigrants, it is easy for the president to attack them first, just as previous US US administrations barred Jews, thereby adding to the death toll of the holocaust; and before that, barred Chinese immigrants; while locking up Japanese-Americans during WW2.

    But the history of many different countries, including one in Central Europe which I don't have to mention because Nolan knows which one I am talking about, shows that once the rights of an unpopular targeted minority are taken away, everyone else's freedom will disappear too.

    Unfortunately, not many Germans stood up against the anti-Jewish Nuremberg Laws in 1936. Everyone knows what happened after that.

    For this reason, every American, regardless of religion, color and ethnicity, needs to stand up against Trump's Muslim ban and other expressions of hate against this targeted minority.

    On a personal note, I might also add that as a Jew, who was lucky enough to be born in America during the Holocaust years, I feel under a special obligation to speak out against discrimination against Muslim immigrants, in common with many Jewish religious leaders and Jewish religious organizations in America. See: Jerusalem Post, January 30:

    American Jewish movements unite to warn Trump against religious tests

    http://www.jpost.com/Diaspora/Americ...s-tests-479988

    As Jews, we have seen before with our own eyes when discrimination and hatred by a government of any country against any targeted group of people goes unchecked.

    Never Again!

    (This is not to imply that Trump supports anti-Semitism, genocide or extermination of any person or group. Clearly he does not.)

    But every American who cares about the values and freedoms that this country stands for should join these courageous Jewish leaders in opposing Trump's Muslim ban and all other forms of racial/religious hatred in America.

    My sincere July 4 wishes to all ID readers, especially those of every religion and nationality who are about to become new Americans during this holiday weekend!

    Even in Donald Trump's America, it is good to reflect on the fact that some good things are still happening.

    Roger Algase
    Attorney at Law


    Updated 07-02-2017 at 07:40 PM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    Roger, we have the Constitutional right to free speech, and you have chosen to use that precious right to make an endless string of ad hominem attacks on people who want to enforce the immigration laws of this country. Before Trump, you directed these attacks at Republican enforcement advocates, and now your anger seems to be focussed entirely on Trump.

    One just has to read your comparison of Trump's enforcement policies with the anti-Jewish Nuremberg laws of 1936, to realize that you are being completely irrational. The American Congress passed our immigration laws and they were signed by presidents. Are you comparing Congress and previous presidents to Hitler and Nazi Germany too? Trump is just enforcing the laws they enacted.

    Nolan Rappaport
    Updated 07-03-2017 at 09:47 AM by ImmigrationLawBlogs
  16. ImmigrationLawBlogs's Avatar
    In Nolan's latest comment above, I can see an attack on my own alleged personal motives for opposing Trump's Muslim ban exercise in what the 4th Circuit Court of Appeals, in an overwhelming majority 10-3 decision, (not me- I am not a judge and did not write the decision) called "animus" ("hostility", in English) and religious discrimination against Muslims on Trump's part.

    But I do not see any coherent legal argument by Nolan in response to my points. As for my reference to the Holocaust in connection with Trump's Muslim ban, I have made clear that Trump has never advocated or supported anti-Semitism, or extermination or genocide against anyone.

    Nevertheless, there is a long list of Jewish organizations which have been warning about parallels between the Nazi discrimination against the Jews, such as that contained in the notorious 1936 Nuremberg laws which ultimately led to Auschwitz and the other death camps, and Trump's attacks against Muslim immigrants.

    According to Newsweek and other media reports, even Anne Frank's own stepsister, herself a Holocaust survivor, has drawn such a comparison.

    http://www.newsweek.com/holocaust-me...d-trump-420312

    If Nolan would like to contact these Jewish organizations and try to persuade them to change their views, I will be glad to furnish at least a partial list. I will readily agree, however, that this comparison should not be pushed too far, and that is not my intention.

    The prejudice and animosity which Trump is showing toward Muslim (and other non-white) immigrants, and his egregiously bad faith attempts to mislead the courts about the real motives for his Muslim ban orders, are reprehensible enough and dangerous enough to the basic rights of both Muslim and non-Muslim US citizens by themselves.

    Roger Algase
    Attorney at Law
    Updated 07-03-2017 at 12:11 PM by ImmigrationLawBlogs
  17. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    In Nolan's latest comment above, I can see an attack on my own alleged personal motives for opposing Trump's Muslim ban exercise in what the 4th Circuit Court of Appeals, in an overwhelming majority 10-3 decision, (not me- I am not a judge and did not write the decision) called "animus" ("hostility", in English) and religious discrimination against Muslims on Trump's part.

    But I do not see any coherent legal argument by Nolan in response to my points. As for my reference to the Holocaust in connection with Trump's Muslim ban, I have made clear that Trump has never advocated or supported anti-Semitism, or extermination or genocide against anyone.

    Nevertheless, there is a long list of Jewish organizations which have been warning about parallels between the Nazi discrimination against the Jews, such as that contained in the notorious 1936 Nuremberg laws which ultimately led to Auschwitz and the other death camps, and Trump's attacks against Muslim immigrants.

    According to Newsweek and other media reports, even Anne Frank's own stepsister, herself a Holocaust survivor, has drawn such a comparison.

    http://www.newsweek.com/holocaust-me...d-trump-420312

    If Nolan would like to contact these Jewish organizations and try to persuade them to change their views, I will be glad to furnish at least a partial list. I will readily agree, however, that this comparison should not be pushed too far, and that is not my intention.

    The prejudice and animosity which Trump is showing toward Muslim (and other non-white) immigrants, and his egregiously bad faith attempts to mislead the courts about the real motives for his Muslim ban orders, are reprehensible enough and dangerous enough to the basic rights of both Muslim and non-Muslim US citizens by themselves.

    Roger Algase
    Attorney at Law
    I don't care who agrees with your absurd comparisons between the United States with Trump as president and Hitler's Nazi Germany.

    I have asked you repeatedly to stop using comments to my articles as a platform for your anti-Trump tirades. Why are you still doing it?

    It is extremely offensive, and it isn't necessary. You are perfectly capable of disagreeing with my articles without resorting to Trump character assassinations. In fact, you have done it a number of times.

    Nolan Rappaport


  18. ImmigrationLawBlogs's Avatar
    One of the most essential attributes that anyone who writes articles or comments about any legal or policy issue, whether dealing with immigration or any other topic under the sun, is to learn to expect and handle disagreement, even if it concerns policies or actions of the president of the United States.

    In the case of Nolan's above article, the central issue currently before the Supreme Court of the United States, if not the only real issue, involves the extent, if any, to which the courts have the authority to look into the issue of the good faith of the president (and his Justice Department) in promulgating and defending his president's Muslim ban order.

    The 4th Circuit Court of Appeals, whose order blocking key parts of Trump's ban is now on review before the Supreme Court, and therefore is the subject of Nolan's article, determined, in effect, by an overwhelming 10-3 vote sitting en banc, that the real motive for Trump's Muslim and refugee ban orders was not national security, as Trump has claimed all along and as the order states on its face, but "animus" and religious discrimination against Muslims.

    To put it a little less politely, these 10 distinguished judges, in an official, formal court opinion, are, in effect calling Trump an anti-Muslim bigot.

    Further, the obvious implication of the 4th Circuit's opinion is that Trump was being less than honest, both with the nation and with the courts, when he described the Muslim ban order as a national security measure rather than one whose purpose was religious discrimination prohibited by our Constitution.

    In other words, the Court was in effect calling the president a liar. At least, this is a justifiable interpretation of the decision by any lawyer or legal analyst who engages in a serious discussion of that decision.

    To call someone a bigot and a liar directly, or by clear implication, necessarily reflects on the character of that person, who in this case happens to be the president of the the United States.

    Nolan has chosen to write an article about this decision, which he believes the Supreme Court will refuse to follow for the reasons he propounds.

    Nolan now objects to my comments on his article, in which the president's good faith , i.e. character, is necessarily involved, if not the central or even, arguably, only issue, and calls them "character assassination"

    Might I respectfully suggest to Nolan that if he does not want to look at comments to his articles relating to the the president's character, then a good way to avoid such comments would be for him not to write articles about a legal topic or court case in which the president's character, i.e. good faith, honesty and freedom from religious prejudice - or lack of the aforesaid - is the central issue in the entire case.

    I now turn to the issue of the reaction of prominent Jewish organizations and individuals to Trump's Muslim ban orders - original and current version, which Trump himself has criticized as an inadequate, "watered down", "politically correct" version of the original which he now regrets having withdrawn and replaced:

    http://www.mercurynews.com/2017/06/0...is-presidency/

    Certainly, any comparison between Trump's attacks and actions against Muslim immigrants and the persecution of the Jews during the Holocaust is bound to raise sensitivities and stir up painful memories.

    But while it is unjustified and wildly exaggerated to call Trump another Hitler, since, as I have always been careful to point out, Trump is not anti-Semitic and has never advocated extermination or genocide against any person or group, there are certain resemblances between the persecution of the Jews in 1930's Germany and Trump's assaults on Muslims and other minority immigrants today which it is entirely fair and justified to point out.

    The list of American Jewish organization, across the entire political spectrum, from liberal to conservative, who have condemned Trump's bans on Muslims and refugees is a long one.

    I attach a link to another article, in the Los Angeles Times, showing the great outpouring of sympathy and support among members of America's Jewish community for Muslims affected by Trump's entry ban orders. There is evidently a widespread feeling among many Jews in America that, as a people, we have been there before and that it is an obligation to fight against religious discrimination against Muslims now, even if, or especially if, this discrimination at the very highest level of our government.

    http://www.latimes.com/nation/la-na-...017-story.html

    On the subject of banning refugees from all over the world, many of whom are also Muslims, see, January 30:

    Jewish Groups Across The Spectrum Unite In Condemnation Of Trump's Refugee Ban

    http://www.tabletmag.com/scroll/2232...ps-refugee-ban

    If the widespread opposition to the president's Muslim (and refugee) bans expressed by so many prominent Jewish organizations and individuals, inevitably recalling the history of persecution which the Jewish people have experienced throughout history, the Holocaust included, is "character assassination" of the president, then I am in good company and proud to be on the same side.

    To conclude, if Nolan wishes to avoid comments to his articles dealing with certain aspects of the president's character which are directly related to his immigration policies and are now before the courts, Nolan might wish to consider writing about some other topic, or some other president or presidents, in the future instead.

    Roger Algase
    Attorney at Law

    Updated 07-04-2017 at 09:24 AM by ImmigrationLawBlogs
  19. ImmigrationLawBlogs's Avatar
    Roger says, "Might I respectfully suggest to Nolan that if he does not want to look at comments to his articles relating to the the president's character, then a good way to avoid such comments would be for him not to write articles about a legal topic or court case in which the president's character, i.e. good faith, honesty and freedom from religious prejudice - or lack of the aforesaid - is the central issue in the entire case."

    My article is not about "the president's character, i.e. good faith, honesty and freedom from religious prejudice - or lack of the aforesaid." It's about whether Mandel permits the courts to raise those issues with respect to a travel ban executive order which gives no indication that the stated basis for the travel ban is not facially legitimate and bona fide.


    If Mandel prohibits discussing extrinsic evidence of bad faith without a reason in the order to suspect that the stated basis is not bona fide, there is no reason to discuss the extrinsic evidence of bad faith.

    And you can't discuss the meaning of the holding in Mandel by rehashing the extrinsic evidence in the present case.

    The fact that this is what the article about is clearly stated in the article's title, "Supreme Court will not consider evidence of religious discrimination in its travel ban decision."

    Roger nevertheless has used my article as a platform for venting his animosity towards Trump.

    If he is willing to take another look at my article and discuss the issue it raises, he can start his response by answering the question he has persistently ignored:

    "
    If the courts are free to look behind the order when there is no indication of bad faith in the order, what does Mandel mean?"

    Nolan Rappaport



    Updated 07-04-2017 at 09:27 AM by ImmigrationLawBlogs
  20. ImmigrationLawBlogs's Avatar
    I will respond to Nolan's above question concerning the US Supreme Court's non-binding dictum in the Keindienst v. Mandel case (1972), namely that the courts cannot look behind an executive order refusing a visa or barring a foreign citizen or citizens from entering the US if the order is facially legitimate and bona fide more fully below and in a forthcoming ilw.com comment of my own on this decision.

    Here, I will only point out that this statement, which Nolan relies on so heavily (and above, in such large type!, is only what lawyers call "dictum", i.e. not binding on future courts, because good faith was not an issue in Mandel and the case was not decided on those grounds.

    Therefore no matter what size font Nolan may use, he is making a big fuss over very little in his constant references to this five word formula or mantra.

    Other than that, Nolan's latest comment cannot have been meant seriously in any event. The entire 4th Circuit Court of Appeals decision, which contains negative comments about the president's actions and motivations that would in some respects make my criticisms look pale by comparison, since I do not have the writing skills of the distinguished Chief Judge who wrote the opinion of the overwhelming 10-3 majority in that case, is now before the Supreme Court.

    The Court has not yet ruled on whether or not to consider the evidence of bad faith i.e. bad character on the president's part which is still before the court and part of the case.

    Nolan would like me to restrict my comments to only part of the case, the part that he thinks is relevant. But as long as the entire case is still before the Court, comment on all aspects of the case, including those which Nolan thinks are irrelevant (based on his strained and untenable interpretation of five words in a 1972 Supreme Court decision which I am writing about separately in my own ilw.com blog articles), is perfectly justified - more than that, essential - to any serious legal discussion.

    No one knows this better than a distinguished legal scholar and writer such as Nolan himself. If the case under discussion and now before the High Court contains some comments that reflect less favorably on the president than Nolan feels comfortable dealing with, that is not because do any alleged personal "animosity" toward the president on my part.

    It is because these comments are part of the decision which Nolan himself picked as the topic for his article.

    And, even assuming that Nolan is right in his contention that certain types of evidence before the Court in this case, evidence which the 4th Circuit discussed at length and found highly persuasive, and which is even referred to in the title of Nolan's own above article, are irrelevant and should not be considered, is it wrong - beyond the scope of appropriate legal discussion - to mention what that evidence is - what it actually consists of?

    I cannot imagine that Nolan, the author of thousands of administrative agency decisions, would hold to such an unreasonable view.

    In the spirit of serious and respectful legal discussion between lawyers, Nolan should be welcoming criticism of his views, rather than trying to stifle it by making negative personal comments about someone who disagrees with those views.

    I will now turn to Nolan's contention that, according to the 1972 Mandel decision, bad faith in an executive branch decision to exclude one or more foreign citizens from the US or deny them a visa to the US is not something that the courts have the power to look into unless the bad faith is apparent from the face of the order itself.

    It is hard to believe that a lawyer of Nolan's great reputation and distinction would make such an argument seriously. Bad faith, by its very definition, involves a person's conduct with respect to a given document or transaction, not necessarily what is in the document itself.

    To give a very simple example, suppose someone enters into a contract agreeing to pay a sum of money that the person in fact has no intention of ever paying.

    Just because the contract is regular and appears to be in good faith on the surface, would anyone ever argue that it was entered into in good faith if the person signing the contract never makes a single payment, and the extrinsic evidence, let us say communications that the debtor had made to third parties, shows that the person entered into the facially valid contract with intent to deceive and to defraud the other party?

    Can Nolan cite a single case in any area of law where a court has refused to consider clear evidence of intent to misrepresent or deceive in any kind of transaction on the grounds that the documents constituting the transaction itself are "facially legitimate"?

    Is that what Nolan seriously thinks the words "good faith" mean in American law? Are the words "facially legitimate" intended to be used as a license to cheat, deceive and misrepresent, which is essentially what the 4th Circuit majority determined that Donald Trump did in connection with his Muslim ban orders and his defense of them before the federal courts?

    I will examine this question further in my own forthcoming blog comment dealing with Mandel.

    Finally, with due apologies to Nolan for going against my own statement that personal comments in this kind of debate are to be avoided, I will close this response by pointing out that if American presidential elections were decided according to the actual winner of the popular vote, instead of electing the popular vote loser by almost 3 million votes last November, and if President Hillary Clinton were shown to have misrepresented her intentions and motives about a presidential order in the federal courts to an extent even remotely approaching what the overwhelming 4th Circuit majority determined that Donald Trump has done, Nolan would, without any doubt, be calling for her impeachment, not to mention imprisonment, day after day, without letup.

    Roger Algase
    Attorney at Law




    Updated 07-04-2017 at 02:07 PM by ImmigrationLawBlogs
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