Update: March 18, 12:20 pm

POLITICO reports on March 17 that the 9th Circuit Court of Appeals judges are escalating their attacks on each other in additional opinions written after the five-judge dissent authored by Judge Jay Bybee, discussed below in my expanded version of my original comment first posted on March 17.

I will have more to say about Judge Bybee's dissent and the fierce reaction to it on both sides in an upcoming comment ilw.com comment.

For the POLITICO story, see:


The expanded version of my original comment appears below.

In what could could be one of the most extraordinary judicial opinions ever written in the history of US immigration law, 9th Circuit Judge Jay Bybee, joined by four other of that court's judges, issued a dissenting opinion which sharply criticized Donald Trump personal attacks on the judges of the court, even while supporting Trump's claim of almost unlimited presidential power to ban immigrants from entering the United States.

For a summary of Judge Bybee's dissent an a link to the full opinion in the American Bar Journal, see:


In a lengthy opinion which relied heavily on the alleged limits on judicial power to interfere with "good faith" decisions of the executive branch to exclude non-US citizens from entering the US (citing Kleindienst v. Mandel, S. Ct. 1972, but said nothing about the Constitutional rights of U.S. citizens to free exercise of religion and equal protection of the law, Judge Bybee wrote in his dissent that:

"We are judges, not Platonic guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decision to permit or forbid entry into the United States, to the President and Congress."

Without going into the origin of the Supreme Court's doctrine of "Plenary Power" being vested in Congress and the executive over immigration, dating from the dark days of the Chinese exclusion laws, it is enough to point out that Trump's Muslim ban orders did not even meet the very basic Kleindienst v. Mandel test, cited by Judge Bybee, of being facially legitimate and in good faith.

However, after making clear in his opinion that he (and the other four judges who joined in the dissent) supported Trump's view that the courts have little or no business questioning his power to bar any foreign citizen or citizens he chooses from entering the US for almost any reason he chooses, Bybee, one of America's most conservative judges, who achieved notoriety as the author of the G.W. Bush administration's "Torture Memos", wrote a denunciation of Trump's authoritarian attempts to intimidate the judiciary which, one can safely predict, will be quoted more many years or even centuries to come, for as long as America continues to remain a democracy:

"Even as i dissent from our decision not to vacate the panel's flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were all out of bounds of civic and persuasive discourse - particularly when they came from the parties [i.e. Donald Trump]. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy."

Judge Bybee's stinging rebuke of Trump's personal attacks on judges who do not agree with him concluded:

"Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all."

As if to lend credibility to Judge Bybee's unprecedented rebuke of a sitting president for undermining the rule of law in America, even while agreeing with Trump's position on the case at hand, Trump responded with another, ominous attack against the court's majority judges who supported a more limited view of presidential power, accusing the 9th Circuit as follows:

"That circuit is in chaos and that circuit is frankly in turmoil."


Trump's latest attack follows a threat in February by Republican Senators to break up the 9th Circuit in response to its original decision blocking Trump's seven country Muslim entry ban.


What does this say about the chances for survival of democracy and the rule of law in America while Donald Trump is president?

As I predicted in an earlier Immigration Daily comment, both Trump's claim of unlimited presidential power over immigration and his personal attacks against judges who disagree with him put the foundations of America's democracy at risk.


The issue raised by Trump's attempt to ban more than 100 million Muslims in six, formerly seven, countries from entering the United States has now escalated from an assault on a particular religion to an attack on the Constitution's separation of powers and judicial independence itself.
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 diverse parts of the world obtain work visas and green cards.

Roger's email address is algaselex@gmail.com