Update, October 11, 10:07 pm:

For a comprehensive article on the significance of Donald Trump's threat to jail Hillary Clinton at the October 9 presidentail debate, see: Yoni Applebaum in The Atlantic, October 11:

Donald Trump's Promise to Jail Clinton Is a Threat to American Democracy


Update, October 11, 5:25 pm:

For a discussion of potential constitutional issues dealing with other immigration-related proposals which have been made during the course of this presidential campaign, see my upcoming series of ilw.com blog posts under the title:

"Civil War" between America and the Constitution over Immigration?"

Part 1 of this series begins today, October 11.

My original post with previous follows bellow:

Update, October 10, at 10:36 am

The following post explains why there is little if any difference between Republican presidential candidate Donald Trump and his Vice-Presidential candidate, Indiana Governor Mike Pence, concerning policy on excluding Syrian refugees, a policy which is the subject of an October 3 US Court of Appeals for the Seventh Circuit decision discussed in extensive detail below.

However, there is one difference between the two candidates, even though it might be described as one of degree rather than one of kind. In the decision discussed below, the Seventh Circuit criticized Governor Pence for assuming without any evidence that there would be a possible danger of terrorist attacks if any Syrian refugees were allowed into Indiana.

In the panel's unanimous opinion written by Judge Richard Posner, the Court described the intensive screening process for refugees which can take up to two years, and called Governor Pence's contention a "nightmare scenario".

However, the Court acknowledged that even this intensive screening procedure is not totally perfect and cannot be 100 percent foolproof. its only point was that a theoretical imperfection in the screening process does not equal evidence of actual danger from admitting refugees who have been through that process.

But at the October 9 presidential debate, Pence's running mate, Donald Trump, went much farther. As quoted in The Guardian, these were Trump's exact words:

"People are coming into our country, like, we have no idea who they are, where they're from, what their feelings about our country are...We know nothing about their values and we know nothing about their love of our country."

At least as applied to Syrian refugees, the above statement could not possibly be more false. The actual rigorous (though admittedly not absolutely perfect) screening process is described by The Guardian in detail in the following link, and also in by Judge Posner in the decision discussed below. see:


There cannot be a meaningful discussion about immigration policy unless all parties involved are willing to pay at least some minimal attention to the truth rather than making up their own reality.

The following post has been slightly revised as of 11:09 pm on October 9:

Even on the extremely improbable, barely more than hypothetical event that Mike Pence were to replace Donald Trump at the top of the Republican ticket in next month's election, there is one immigration issue where any change in policy would not be very likely - namely in the opposition to allowing Syrian refugees to enter the United States.

While Trump has announced that he would ban all Syrian refugees from the United States and even said that he would send back refugees who are already here, see:


Pence has been equally firm in trying to bar Syrian refugees from coming to live in Indiana under a federal refugee resettlement program.

Unfortunately for Governor Pence, but fortunately for the small handful of Syrian Refugees involved, the Seventh Circuit US Court of Appeals, in a unanimous three judge panel decision written by Richard Posner, one of America's most respected federal judges (who unlike District Judge Gonzalo Curiel is not of Mexican "ancestry" or heritage"), struck down Governor Pence's attempt in a withering opinion which compared his attempted ban to racial discrimination.

See: Exodus Refugee immigration v Pence, October 3, 2016.

In that case, the Court's opinion starts off by stating that President Obama had made a determination to admit 10,000 Syrian refugees during fiscal year 2016 under the Refugee Act of 1980, 8 U.S.C. 1157(a). As stated in the Circuit Court's decision, all persons seeking to enter the US as refugees are required to go through:

"multiple layers of screening by the federal government..."

Judge Posner's opinion, joined in by the panel's other two judges, as mentioned above, goes on to say:

"The process can take up to two years".

The Court then turns to Governor Pence's central contention in the case, which Judge Posner describes as follows:

"The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States to commit terrorist acts. No evidence of this belief has been presented, however; it is nightmare speculation."

With the above as background, Judge Posner then describes how this case came before the Court. First, he describes a section of the Refugee Act which allows the federal government to give the states money to resettle refugees under 8 U.S.C. Section 1522:

"To receive the federal money a state must submit to the federal Office of Refugee Resettlement a plan for using the money to assist refugees to receive economic self-sufficiency. 8 U.S.C. Section 1522(a)(6). Indiana has submitted such a plan and it's been approved."

Judge Posner continues:

"Under the plan the state contracts with private resettlement agencies for the provision of social services to refugees, and the agencies are reimbursed by the state for the cost."

The Judge turns to the central issue in the case, namely Indiana's refusal to honor its commitment to reimburse the plaintiff in the case a private agency, for the cost of resetting any Syrian refugees in that state.

Judge Posner's opinion states:

"Another section of the Refugee Act provides that 'services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex or political opinion.' 8 U.S.C. Section 1522 (a)(5)..

The opinion continues:

"Fearing that Syrian immigrants may be potential terrorists, the governor wants to minimize their number in Indiana. Acknowledging that he can't close Indiana's borders to them..the governor has forbidden Exodus or any other resettlement agency to be reimbursed for the cost of providing social services to Syrian refugees."

Judge Posner's opinion then goes on to affirm the lower court's grant of an injunction to Exodus prohibiting the state of Indiana from refusing funds to that agency to be used in providing services to Syrian refugees who wish to settle in tat state. In a telling and powerful rebuke to Governor Pence and the other defendants in that case Judge Posner states:

"The governor's brief asserts 'the State's compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries.' But the brief provides no evidence that Syrian refugees have ever committed acts of terrorism in the United States."

And finally, in squarely addressing the central issue in this case, that of Governor Pence's unlawful discrimination against Syrian refugees without any evidence or justification for doing so, Judge Posner, again writing for a unanimous 7th Circuit panel concludes:

"He [Governor Pence] argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the people of Indiana. But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is not his motive he isn't discriminating. But of course that would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality."

The above is not to say that discrimination against immigrants on the basis of nationality is forbidden under the Constitution. It is not.

The late 19th Century Supreme Court cases upholding the constitutionality of the notorious Chinese exclusion laws on the "plenary power" grounds that immigration policy is the province of the "political branches" of the government, not the courts, have never been overruled and are still the foundation of our immigration laws today. See:

Chae Chan Ping v. United States ,
130 U.S. 581 (1889) [the "Chinese Exclusion Case"].

See also:

Natsu Taylor Saito:

The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for Ongoing Abuses of Human Rights

10 Asian Am. L.J. 13 (2003)

For more than 40 years, from 1924, to 1965, the Johnson-Reed Immigration Act made discrimination against non-"Nordic" immigrants on the basis of "national origin" immigration quotas the official policy of this country, and certain forms of legal discrimination in admission of immigrants on the basis of national origin, notably in the Visa Waiver program, still exist today.

But the 7th Circuit's decision in the above case was not based on constitutional grounds - it was based on a federal law specifically prohibiting discrimination against resettlement of refugees in the various states on the basis of national origin.

Regardless of whether or not there is any change in who the Republican presidential candidate may be between now and and next month's election, it does not seem very likely that 8 U.S.C. Section 1522(a)(5), prohibiting discrimination against refugees in terms of resettlement plans on the basis of national origin would be a high priority for enforcement in the new administration in the event of a Republican victory.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from a variety of nationalities and countries of origin obtain work visas and green cards. Roger's email address is algaselex@gmail.com