Update: April 20, 10:55 am:

Readers who are interested in the following topic may also want to read my Letter to the Editor appearing in the Immigration Daily Letters section for the week April 18 - April 22.

My original post follows:


The headlines are now dominated by two stories: First there are the attempts of the Republican "establishment" (or what is left of it) to stop Donald Trump from obtaining enough delegates to clinch the GOP presidential nomination.

Second, an evenly divided Supreme Court appears to be on the way to a 4-4 tie decision in United States v. Texas that wouid leave in place a 5th Circuit US Court of Appeals decision clearing the way to, if not actually requiring, mass deportation of Latino and other minority immigrants on a scale that is totally without precedent in American history. These two news stories are not exactly unrelated.

While mass expulsion of 12 million minority men, women and children would be something new for America, it would not have been unusual for Hitler, Stalin, Mao or Pol Pot, to mention only of few of the dictators in various parts of the world who have carried this practice out in modern times.

Who filed the U.S. v, Texas lawsuit? It was not Donald Trump. It was the governors of 26 Republican-controlled states. Who are the four Republican-appointed Supreme Court Justices who, at the April 18 oral argument, appeared to be supporting the incredible contention of the 26-Republican states that the Obama administration lacks the power to stop or grant relief from mass deportation?

These 26 state governors and four Republican Supreme Court Justices are not Donald Trump's violence-prone supporters screaming racial, anti-immigrant epithets at his rallies. They represent (in most cases) the same Republican "establishment" that is now desperately trying to wrest the nomination away from Trump because, among other things, they think that his extreme anti-immigrant rhetoric, including support for mass deportation carried out by a Gestapo-like "special task force", a Berlin Wall on the the Mexican border, and barring every Muslim in the entire world from entering the US, will bring the Republican party down in flames in this fall's election.

But are not the Republican "establishment" figures who filed U.S. v. Texas at least partly responsible for creating Donald Trump, or at least paving the way for him? Is he not simply building on the foundation of animosity against Latino, Asian and black immigrants that the "mainstream" Republicans have been exploiting for at least the past two decades, ever since they rammed through IIRIRA in the middle of the night without discussion or debate just a month before the 1996 presidential election?

There is an even greater irony in the U.S. v. Texas lawsuit, as some other commentators are pointing out. In essence this lawsuit is asking the Supreme Court to determine whether all of the estimated 12 million unauthorized immigrants in the US must be deported, or whether millions of them will be allowed to stay, at least temporarily.

What happened to the "plenary power" over immigration doctrine that was developed by the courts in the late 19th century in order to uphold the Chinese exclusion laws? As is well known, this doctrine regards immigration policy as purely a matter for the "political" branches of government, namely Congress and the executive, to determine. According to this doctrine, the courts are supposed to stay out of immigration matters entirely.

Now, in U.S. v. Texas this doctrine is being turned on its head, and the federal courts are being asked to dictate immigration policy to the executive branch. Why this turnaround?

The answer is that in the late 19th and early 20th centuries, "plenary power" seemed to be the best way to keep unpopular minority immigrants out of the United States. In the changed social and political climate of early 21st Century America, having the courts control immigration enforcement instead of the executive branch appears, at least to the governors of the 26 states which brought this racially motivated lawsuit, to be the best way of accomplishing the same goal.

Roger Algase
Attorney at Law
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Member New York and New Jersey Bars
B.A. degree, Harvard College
LL.B degree (equivalent to present-day J.D degree), Harvard Law School
35+ years representing mainly skilled and professional immigration clients
email address: algaselex@gmail.com