The following comment, which has been revised and expanded as of May 21, will continue with some of the points I discussed in my earlier comment on this topic dated May 9.

Amid the countless reasons put forth by innumerable pundits for Hillary Clinton's losing an election that even Donald Trump has (accurately, for once) said she should have won, ranging from the Alpha of alleged Russian hacking of the DNC to the Omega of a letter by a certain government official by the name of James Comey, there is one important factor that has been largely overlooked by the media, but should not be overlooked by the Federal 4th and 9th Circuit Courts of Appeals.

This is the role that the use of specifically anti-Muslim attacks directed against Hillary Clinton by Trump and his supporters may have had in determining the outcome of the election. The nature of these attacks, and their importance, deserve to be among the factors that the 4th and 9th Circuit Courts should consider in determining the legality of Trump's latest six Muslim country entry ban order.

While Trump's revised executive order's actions against refugees, also blocked by the Hawaii federal judge's order now under review by the 9th Circuit, have received far less publicity, they are also arguably just as important to a judicial assessment of Trump's real motives for the entry ban order as the six almost 100 per vent Muslim country ban itself.

Which of Trump's and his supporters many attacks on Muslims, and, especially Muslim refugees, am I referring to, and why are they so important to the six Muslim country and world-wide refugee ban litigation?

Let us take a close look at an October 2016 article, appearing just a month before the election, in Breitbart News, then under the direction of Stephen Bannon, who, as every Muslim and non-Muslim in America knows, is now Trump's senior presidential adviser. The article bears a title typical for this publication, which has never been known for using restrained language:

Critics: Hillary Clinton Plans to Flood U.S. With Muslim Refugees

The article begins with a dire warning:

"More than 45 per cent of the refugees resettled in the United States in FY 2016, 38,556 out of 84,995 were Muslim, according to the Department of State's interactive website. Of the 12,587 Syrian refugees who were resettled in the United States in FY 2016, more than 99 per cent, 12,487, were Muslim."

The article then, after quoting from a National Review piece attacking the Democrats for supporting "aggressive multiculturalism" (an obvious code word for Latino, Middle Eastern, Asian and black immigrants) as opposed to "patriotic assimilation" (i.e. European immigrants, as were favored by the discredited and long since repealed 1924 Immigration Act which Trump's Attorney General Jeff Sessions had such high praise for as a Senator only two years ago, in his 2015 Immigration Handbook for Congressional Republicans), continues with a direct attack on Hillary Clinton.

quotes from an article by Ann Corcoran, who specializes in blogging against Muslim refugees, when she is not warning that America is in danger of being taken over by Sharia law. See:

According to Corcoran, as quoted in Breitbart's above referenced article:

"If Clinton is elected, she will certainly bring in at least 200,000 refugees in her first year, the majority of whom will be from Muslim dominated countries...

Hillary Clinton is clearly hiding her real plans from the American people. If she wins the election, she...will...flood the country with refugees from countries that hate us..."

Breitbart also states:

"Voters strongly oppose President Obama's plan to bring 110,000 Middle Eastern and African refugees to this country next year, up from 85,000 this year, and view that decision as an increased danger to national security, according to a Rasmussen poll."

Is there any question about which religion the overwhelming majority of Middle Eastern Refugees and a large percentage of anticipated African refugees would belong to?

But, as Breitbart News also makes clear in the same article, wildly inflated numbers of refugees whom Hillary Clinton allegedly planned to bring to the United States were not merely bandied about by Donald Trump's surrogates or supporters, but by Trump himself and his top immigration adviser, Jeff Sessions:

"On September 20 in High Point, North Carolina, GOP nominee Donald Trump, citing a Senate study, said: 'Altogether Hillary Clinton's plan would bring in 620,000 refugees in her first term, alone, with no effective way ti screen or vet them. Her plan would cost $400 billion in terms of lifetime welfare and entitlement costs.'"

And what "Senate study" did Trump have in mind when he made this speech? Breitbart reports:

"But the 620,000 estimate does not come from the Trump campaign. Instead, it comes from a statement released by the Senate Subcommittee on Immigration and the National Interest chaired by Sen, Jeff Sessions (R-AL)"

And this was not Trump's only attack against Clinton based on the issue of predominantly Muslim refugees: Mother Jones reported the following about a speech Trump made at a September, 2016 rally in Ft. Myers, Florida:

"Trump attacked Clinton as weak on immigration and terrorism, saying the Democratic nominee 'has the most open borders policy of anyone ever to seek the presidency.' He also falsely claimed that ISIS prefers that Clinton win the election. "They want her so badly to be your president, you have no idea.'"

The same report also states:

"Later in the day, the Trump campaign issued a statement that called for 'extreme vetting' of refugees and keeping the number of Syrian refugees in the United States at their current low levels."

Here are some excerpts from Trump's statement referred to in the above story:

"Today, Hillary Clinton showed that she will say anything - and blame anyone - to shift attention away from the weakness she showed as Secretary of State. The Obama-Clinton doctrine of not taking ISIS seriously enough has emboldened terrorists all over the world. They are hoping and praying that Hillary Clinton becomes president so they can continue their savagery and murder...

That's why I've proposed extreme vetting for immigrants from troubled parts of the world where terrorists live and train and oppose Hillary Clinton's 550% increase in the number of refugees from the conflict in Syria."

What, exactly, did Trump mean by the term "extreme vetting"?

Is it anything other than a Muslim entry ban?

It is nothing other than that, according to Trump's response at his October 9, 2016 debate with Clinton: Here is the exchange, as reported in the transcript of the debate:

"RADDATZ: Would you please explain whether or not the Muslim ban still stands?

It's called extreme vetting." [Italics added.]

After this bald admission that the Muslim ban and "extreme vetting" are one and the same thing, Trump continued as follows, according to the debate transcript:

"We are going to areas like Syria where they're coming in by the tens of thousands because of Barack Obama. And Hillary Clinton wants to allow a 550 percent increase over Obama. People are coming into our country like we have no idea who they are, where they are from, what their feelings about our country is [sic], and she wants 550 percent more. This is going to be the great Trojan Horse of all time...

But I don't want to have...hundreds of thousands of people coming in from Syria when we know nothing about them. We know nothing about their values and their love for our country."

In addition to Trump's utterly baseless claim that the US was letting in refugees from Syria "when we know nothing about them" (after the normal 2-year screening process which was in place for Syrian refugees under Obama!), the last sentence of Trump's above response goes beyond the specific issue of terrorism and into the larger "cultural" attack which has been used to exclude unpopular minority immigrants from the time of the anti-Irish Know-Nothings in the mid-19th century, the Asian exclusion laws around the turn of the 20th century, and the anti-Jewish and anti-Catholic Johnson-Reed Immigration Act of 1924.

Here, Trump is suggesting that, even apart from any alleged terrorist connections or sympathies, Syrian refugees may not fit in with American "values", or may be lacking in "love" for America, just as Chinese immigrants were accused by the US Supreme Court of being unable to assimilate in is notorious Chae Chan Ping decision in 1889, and as every other minority immigrant group in our history has been accused of at one time or another.

Taken as a whole, Trump's above remarks show a clear pattern of using the terror issue as an entry way to excluding all members of an entire major world religion from the United States (just as Trump is now using "crime" as an excuse to ramp up the deportation of 11 million mainly Latino immigrants).

Is this something that the 4th Circuit, 9th Circuit and other federal courts which may be deciding the legality of Trump's Muslim ban orders can be expected to turn a blind eye to?

There is a powerful case to be made for the proposition that Trump's rhetoric accusing Hillary Clinton of being "weak" against the alleged danger of admitting Muslim refugees did more to help him win the electoral vote last November (while losing the popular vote to Clinton by almost 3 million votes) and become president than any other factor (including, to be sure, Clinton's own perceived weakness as a candidate, symbolized by her vapid, meaningless and now totally forgotten campaign slogan: "Stronger Together" ). (Oy!)

In issuing the original and revised Muslim ban orders, was Trump's real concern one of national security? Or was he instead fulfilling a campaign promise (yes, even presidents sometime do that, now and then) that he made in his notorious worldwide Muslim ban speech of December 7, 2015?

Isn't this something that the federal courts, under the doctrine of separation of powers on which our democracy depends, have not only the right, but the duty, to look into?

And wouldn't this be the case even if Trump had not, after becoming president, continued his previous anti-Muslim policies by appointing Michael Flynn, who said that the Muslim religion was a "cancer", and Stephen Bannon, the Breitbart News chief who believes that the "West" is in a "War of Civilizations" with the Muslim world, to the highest level advisory positions in his administration?

And this is not to mention Trump's appointment of Jeff Sessions, the source of the above inflated figures quoted by Breitbart News, whose only purpose was to scare American voters into thinking that this country would be inundated by hundreds of thousands of America-hating Muslim refugees if Hillary Clinton became president, as his Attorney General (with responsibility for defending the Muslim ban orders in court)!

Are the federal courts obliged to pretend, to adopt a legal fiction that flies in the face of all reality and truth concerning the history of this issue, to the effect that none of the president's Islamophobic statements or actions, before and after his becoming president, have any meaning or connection with the origin and purpose of both the initial seven country version and his latest six Muslim country entry ban order?

In Kleindienst v. Mandel (1972) a leading Supreme Court decision involving the capacity of the federal courts to review a State Department visa denial, the Court quoted a statement by Justice Felix Frankfurter, to the effect that the power of the courts to review executive branch immigration decisions might be different if the "slate" (of judicial precedents) were "clean". But, referring to a line of decisions dating from the dark period of the Chinese exclusion laws, Frankfurter said that the slate was not clean.

In the case of Trump's Muslim ban orders, the issue, to be sure, involves a different "slate" - the president's own speeches and actions, both before and after taking office. Who can possibly say that that slate is clean?

In conclusion, let us suppose that both of the above Circuit Courts, or the Supreme Court, accept the president's meretricious (from the Latin word meretrix - look it up) argument that the courts have no power to look behind the surface language of the latest six Muslim country entry ban order in order to ascertain its true purpose, and that they are instead required to accept the national security pretext set forth in the order at face value.

Can there be any possible doubt that if the Muslim entry ban is upheld, the president, whose relationship with the truth has been tenuous at best in most of his immigration statements (as even many of his own supporters would admit), would seize on such a decision as an endorsement of his campaign statements that all Muslims are suspect, including several million loyal American citizens, and that the rights of these US citizens to free exercise of their religion, or their personal freedom from surveillance, or even from WW2 Japanese-American style internment if the untrammeled will of the president so determines, are no long recognized in Donald Trump's America?

And if the rights of Muslim Americans disappear, how secure will be the rights of the rest of the American people who are not Muslims?

This is the ultimate danger of Trump's Muslim ban orders, as well as his mass deportation agenda against mainly Mexican and other Latino immigrants. On the surface, they may only appear to affect the rights of non-citizens.

But history, as well as so many of Trump's own attacks on the media, the judiciary, and just about anyone else who opposes him, show that once the rights and freedoms of immigrants start to vanish, the rights of the American people will soon follow.
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 receive work visas and green cards.

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