Update: February 9, 10:05 pm:

On February 9, 2017, a unanimous 3-judge panel of the US Court of Appeals for the 9th Circuit ruled that Donald Trump does not have the same unlimited power to ban Muslim immigrants, and refugees from all over the world, from the United States that the emperor Tiberius had to expel the Jews from Rome 2,000 years ago, and that autocrats in all times and places have exercised over persecuted minorities in order to consolidate their own power.

For details and an analysis of this historic decision and reaffirmation of American democracy against the threat of dictatorship that America has faced ever since Trump's accession to the White House three weeks ago after his stinging loss in the popular vote, see my February 9 ilw.com post.

My original comment follows:

The ancient Roman historian Suetonius wrote the following about the expulsion of the Jews from Rome under the Emperor Tiberius in 19 A.D.

Externas caerimonias, Aegyptios Iudaeosque ritus conspicuit, coactis qui superstitione ea tenebantur religiosas vestes cum instrumento omni comburere. Iudaeorum iuventutem per speciem sacramenti in provincias gravioris caeli distrubuit, reliquos gentis eiusdem vel similia sectantes urbe summovit, sub poena perpetuae servitutis nisi obtemberassent.

("He [Tiberius] abolished foreign cults, especially the Egyptian and Jewish rites, compelling all who were addicted to such supersitions to burn their religious vestments and all their paraphernalia. Those of the Jews who were of military age he assigned to provinces of less healthy climate, ostensibly to serve in the army; the others of that same race or similar beliefs he banished from the city, on pain of slavery for life if they did not obey."

Roman emperors clearly had unlimited power over foreign populations, such as the Jews (as well as followers of Isis - a popular Egyptian goddess whom the above passage undoubtedly also refers to) 2,000 years ago.

But does Donald Trump have the total power over immigration in 21st century America that Emperor Tiberius had in 1st century A.D. Rome?

The initial answer of the Justice Department was evidently yes, according to the oral argument made by Trump's Justice Department on February 7 before a 3-judge panel of the 9th Circuit US Court of Appeals in the lawsuite brought by the states of Washington and Minnesota seeking to stay the president's January 27 executive order barring almost 200 million people from seven Muslim countries, as well as refugees from every country in the world, from entering the United States on tenuous "national security" grounds which have found little or no support among experts in that field (see the news report cited in my February 7 Immigration Daily comment on this same topic).

However, according to available summaries of the oral argument (I have not been able to find a complete text, even though I listened to relevant parts of the argument myself on line), the three 9th Circuit judges hearing the DOJ motion to stay their order temporarily blocking Trump's ban on entry for immigrants and visitors from the Muslim countries concerned, and from refugees all over the world, were less than totally convinced that a US president has the same unfettered power over immigrants that the emperor Tiberius had according to Suetonius. See, New York Times, February 7:

Appeals Court Panel Appears Skeptical of Trump's Travel Ban

(I am sorry - I do not have a working link to this article. Please go to Google.)

See also POLITICO,


At issue is INA Section 212(f), which gives the president the power to:

...suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants

whenever he finds that

such entry would be detrimental to the interests of the United States.

The question here is whether the courts have the power to review the reasonableness of a presidential finding that the such entry is "detrimental to the interests of the United States"

As presented to the 9th Circuit, the argument of Trump's Justice Department lawyer was initially, in effect, that the above phrase is meaningless, and that the above language gives the president to ban anyone he wants to from the United States for any reason he wants.

However, the requirement that the president must make such a finding in order to bar any foreign citizen or citizens from the United States must have some meaning. The statute does not say that the president has the power to bar immigrants from the United States by making a finding that doing so would shore up his political base, pay off a debt to his white nationalist supporters, or get even with any group of people who opposed his election.

Nor does the statute say that the president can ban the entry of "anyone he or she wants to for any reason he/she wants or for no reason at all".

This issue came up during the oral argument, when the DOJ lawyer, August Flentje, was asked by one of the judges, Willam Canby Jr., whether the president would have the power to say in the order:

"We're not going to let any Muslims in."

Flentje was, evidently, despite his original claim the the president has unlimited power under the above statute, unwilling to go that far. Instead, he argued that there was a national security justification for the order, which implies agreement that the president must show some objective basis for barring foreign citizens from the US.

In addition, Flentje was asked point blank by another on of the three judges, Michelle Friedland:

"Are you arguing, then, that the president's decision in that regard is unreviewable?"

Flentje replied that:

"There are obviously constitutional limitations."

and that the Court should look at

"the four corners of the document".

He also agreed that a court has the power to examine whether a presidential order has a "good faith" foundation.

These two phrases come from the leading Supreme Court cases of Kerry v. Din (2015) and Kleindienst v, Mandel (1972), both of which also became part of the discussion during the oral argument, in line with my previous prediction that the Circuit Court would consider them in reviewing the Muslim ban order.

I will discuss these crucially important decisions in my next comment on this topic.

For now, I will conclude today's comment by mentioning that, according to the New York Times for February 8, America's 45th president was not exactly amused by any suggestion from the appeals court that his power over admission of Muslim immigrants and all refugees to the US might be any less than the power of emperor Tiberius to expel Jews and followers of the goddess Isis from ancient Rome. See:

Trump Calls Hearing on Immigration Ban "Disgraceful"

Please go to Google to access this story. And see also:


What does this say about our new president's respect for America's constitution, separation of powers and the rule of law which are at the foundation of our democracy?

Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards. His email address is algaselex@gmail.com