Update: May 9, 2:25 pm.

I have expanded my comments below to include a more detailed discussion of the legal precedents and governing principles of law which apply to the president's latest six Muslim country entry ban executive order.

In the first part of my two-part discussion of the oral argument which took place before the US 4th Circuit Court of Appeals on May 8, over the president's latest version of his executive order banning citizens of targeted 99 per cent Muslim countries from entering the United States, I referred to the main issue which the judges seemed to be concerned with.

This issue was not whether or not the president has a history of prejudice and animosity toward Muslims as a religion in the period leading up to his executive orders as president banning citizens of selected Muslim countries from entering the United States, because the December 7, 2015 statement, quoted in full below, shows that he obviously does have such a history.

Rather, the issue was whether the broad executive branch power over immigration which the courts have recognized ever since the time of the infamous Chinese exclusion law cases in the late 19th century prohibits the courts from questioning presidential motives for issuing executive orders relating to non-U.S. citizens seeking admission to the United States.

The DOJ argued that the courts are precluded from looking into the history of an immigration executive order of this type, but are limited to reviewing the four corners of the order itself.

In order to see whether this argument has any merit, one must first look at the history of Trump's two entry ban orders from selected Muslim countries themselves. This history begins, but does not end, with the following statement, which appeared on Trump's campaign website beginning December 7, 2015 (a date that can hardly have been coincidental), and continued to appear on that same website right up until May 8, 2017, when it was suddenly removed in response to a reporter's question.

Here is the statement in full, exactly as it appeared on the website:


(New York, NY) December 7th, 2015, - Donald J. Trump is calling for a complete and total shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred toward Americans by large segments of the Jewish population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence here in the United States is justified as part of the global jihad" and 51% of those polled "agreed that Muslims in America should have the choice of being governed according to Shariah". Sharia authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anyone the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people who believe only in jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to make America great again." Donald J. Trump

What are the key points in the above statement that leap off the page in a way that no one who has any familiarity with the English language whatsoever can possibly mistake?

First and foremost, Muslims are singled out as America's mortal enemy, full of hatred against America and Americans.

One can only recall the opening sentence of another famous statement written in 1927 by the right hand man and chief propagandist of the German politician I refer to in the first part of this two-part comment, the same politician who wrote with approval about the racial theories embodied in the Johnson Reed 1924 Immigration Act which two of Trump's top immigration advisers Jeff Sessions and Stephen Bannon, have expressed admiration and support for (ostensibly for different reasons).

In an essay entitled: Why Do We Oppose the Jews, the 1927 writer began:

We oppose the Jews because we are defenders of the freedom of the German people. The Jew is the cause and beneficiary of our slavery.


In Trump's above statement, Muslims are labelled as attackers and destroyers of America, just as the essay of 90 years ago labelled Jews as enslavers of Germany. Where is the difference?

Moreover, Trump's statement implies that Muslims are in effect programmed toward violence and murder of Americans by their religion itself, just as the 1927 statement claimed that Jews, by their very nature, were bound to be a danger to the well being of the German people. As the same essay screamed near the end: Die Juden sind Unser Unglueck. ("The Jews are our misfortune.")

While, of course, unlike the two German figures I have mentioned, Trump does not advocate mass murder or genocide, and he certainly is not an anti-Semite, it is impossible to ignore the similarities in tone between these two statements issued almost a century apart.

Nor was Trump's December 2015 announcement the only statement he has made (or actions he has taken in making some of his top appointments as president) attacking Muslims along similar lines.

How can a federal court carry out its responsibility to determine the legality of something as important and far-reaching in its effect as Trump's six Muslim country entry ban would have on fundamental Constitutional rights embodied in the First, Fifth and Fourteenth Amendments, while at the same time turning a blind eye toward Trumps's above statement, not to mention other even more recent similar ones which he also made during his presidential campaign?

In this connection, the governing rule is set forth in Kleindienst v. Mandel (1972), where the Supreme Court stated that for a visa denial to be insulated from judicial scrutiny, it must be "facially legitimate" and "bona fide".

Trump's latest executive order, like the earlier one, fails the test of being "facially legitimate", because the very fact that the targeted countries are all almost 100 percent Muslim, without some showing of urgent danger or threat coming from any of them immediately raises suspicions of religious discrimination as the main, if not only, purpose of the order.

With regard to be order being in good faith, how can any court ignore the overwhelming evidence of bad faith, arguably bordering on actual misrepresentation to the court, of the order's purpose and intent, shown by Trump's above quoted December 2015 statement?

The fundamental issue in this case is not INA Section 212(f) as is argued by my distinguished colleague Matt Kolken in his comment below. Rather, the basic issue involves the doctrine of "Plenary Power" over immigration in the legislative and executive branches, dating from the dark days of the Chinese exclusion laws as I mentioned above.

Section 212(f) is a statute, and, like any other law of Congress, must still pass a Constitutional test, unless it is interpreted as setting up a one-man dictatorship over a large part of our entire immigration system - something that our newest Supreme Court Justice, Neil Gorsuch, impliedly warned against in a different context in a decision he wrote as a 10th Circuit Judge in August, 2016.

In the case of this statute, the Constitutional justification depends on the Plenary Power doctrine.

I will take a closer look at the origins and history of this doctrine in my next comment, and offer some thoughts about whether this doctrine, which was first announced in an 1889 Supreme Court decision (Chae Chan Ping v. US) that was by no means free of racially biased comments by the Court, still has any use or serves any legitimate purpose today.
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.

Roger's practice is concentrated primarily in H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee visas, and in green cards through labor certification, and though opposite sex or same sex marriage. His email address is algaselex@gmail.com