Update: June 3, at 10:22 am

For a powerful and well-documented article showing beyond any question that Trump's Muslim ban is only the first step toward a large scale rollback of immigration from all parts of the world outside Europe, in a major step backward toward the infamous "Nordics" only Johnson Reed Immigration Act of 1924 (which Adolf Hitler also wrote about admiringly in Mein Kampf), orchestrated by the president's white supremacist top immigration advisers, Stephen Bannon, Jeff Sessions and Stephen Miller, see Jamelle Boule writing in Slate on February 6:

Government by White Nationalism Is Upon Us

For a link to the full article, see:


My original comment appears below:

In a dramatic move, the Trump administration asked the Supreme Court late on June 1 to reinstate the executive order banning approximately 180 million citizens of six almost 100 per cent Muslim countries from entering the US "temporarily" while the administration develops new screening methods.


While the executive order only contemplates a 90-day entry ban, no one seriously believes, based on the president's past statements and those of his Congressional and administration supporters, that the new "screening methods" will take only 90 days to develop.

Nor is there any indication that any such methods have been developed or proposed by the administration in the more than 120 days which have elapsed since the president's original seven Muslim country entry ban order was issued near the end of January, 2017.

This is, even though, to the best of my understanding, no court has blocked the parts of either the first or second presidential orders directing the administration to develop such enhanced screening methods.

Therefore, it is neither unreasonable nor unfair to assume that the "temporary" entry ban (often misleadingly called a "travel ban" in the media - the affected people are free to travel anywhere they wish - just not to the United States!) is meant to last indefinitely - in all probability as long as Donald Trump remains president of the United States.

As several other commentators have also pointed out, the immediate issue before the High Court will most likely be to interpret the meaning of "bad faith" in an administrative decision or action denying a visa or otherwise refusing to admit one or more foreign citizens to the US.

As other commentators have also mentioned, this issue derives from the doctrine set forth in Kleindienst v. Mandel (1972) that a decision to deny admission to the US is beyond court review if it is "facially legitimate and bona fide"; and the statement of Justice Kennedy in Kerry v. Din (2015) that, for the courts to intervene, there must be an "affirmative showing of bad faith".

At the outset, since both of these cases involved immigrant visa denials to one person only, it is unlikely that the Justices in either of the above cases were thinking of developing a standard which would apply to exclusion of the entire citizenry of at least half a dozen countries, affecting almost 200 million people. Donald Trump had not yet been elected president, or even proposed a worldwide ban on Muslims coming to the US at the time of either of the above decisions.

Therefore, neither Mandel nor Din might be an appropriate lens to look through in viewing the issues presented in the 4th Circuit's six Muslim country entry ban decision. But there is a precedent involving issues very similar to the president's entry ban affecting some 180 million Muslims.

This precedent is a shameful one, just as much as a stain on American history as the infamous 1857 Dred Scott decision holding that people of African descent could never be U.S. citizens. I refer to the Chinese exclusion laws beginning from 1882 and lasting well into the 20th Century.

Just as is the case with the six Muslim country entry ban and its predecessor seven-country ban, the Chinese exclusion laws did not specifically mention race (or, in the case of the Muslim country bans, religion). Instead, just as with Trumps's Muslim country ban executive orders were to do 135 years after the original Chinese exclusion law in 1885, they were based on nationality - i.e. citizens of China.

Persons of Chinese ancestry in the entire rest of the world outside of China were not affected - that is, until the exclusion policy was later extended by Congress, first to Japan, and then to the entire rest of Asia in the early part of the 20th century - just as Trump's executive orders also contemplate extending the ban on entry to other countries that allegedly do not, in the president's sole determination, provide enough information about their citizens to the US in order to allow for "effective" screening.

If one reads the six-country ban order and its predecessor seven country order fully, it is easy to see that the listed countries are merely the low hanging fruit. If the ban is upheld in court, other countries can and most likely will be added to the banned list, using the same transparent pretext that the ban is only "temporary", pending "improved" screening procedures.

Which countries might these be? No one knows, but, based on statements that Trump's two top immigration advisers, Bannon and Sessions, have made, it is a safe bet that, in the spirit of the 1924 "Nordics" only Johnson-Reed Immigration Act which these two high administration officials have referred to favorably in quite recent statements (within the past two years), any additional banned countries will be from outside Europe.

But to return to the Chinese exclusion laws, just as Trump and other supporters of the six Muslim country ban's alleged legality are now arguing that the latest version of the ban does not affect everyone in the six listed countries, because there are a number of waivers and exemptions (mainly those forced upon the administration by federal judges who blocked the original seven country version of the ban - sua sponte by the Trump administration these changes were not), the Chinese exclusion laws also contained some exceptions.

The biggest exception, which must have exempted potentially millions of Chinese citizens in that vast country from the ban, was that the exclusion laws only applied to Chinese "laborers", not to "merchants".

But did anyone argue that these laws were not racially motivated. just because they (initially) affected only one country in the entire world - China - and because possibly millions of citizens of that country were exempted? So far as I am aware, no one ever made such an absurd and hypocritical argument.

To the contrary, in the notorious decision in Chae Chan Ping (1889) which is now known and will be forever known to legal scholars and historians as the "Chinese Exclusion Case", and which rivals the notorious 1857 Dred Scott decision itself in infamy, the Supreme Court expressly determined that the original Chinese exclusion law was racially motivated, and the court upheld that law mainly for that reason!

At least in those days, America's politicians and judges were honest about the motives for banning immigrants based on race or religion, and they did not make any bones about it or pretend to rely on empty pretexts instead.

With the Muslim country entry ban executive orders, is the Trump administration taking America back to the spirit of the Chinese exclusion laws, only without the same honesty as to the real motivation? For the above reasons, a "no" answer to the above question would be a very tough argument indeed.

Having commented on the past, I will now turn to the question of what will be in store for America's future if the six-Muslim country entry ban is upheld by the Supreme Court.

As I mentioned at the beginning of this comment, the likely standard that the Supreme Court will use is whether there is "an affirmative showing of bad faith" in the Muslim country entry ban order.

No one will dispute that this is a very high bar to meet, just as no one will argue that INA Section 212(f) does not give the president very broad power to exclude almost any immigrants he wants to, for almost any reason, from the US. 4th Circuit Chief Judge Roger Gregory recognized this in his decision, and it is a forgone conclusion that the Supreme Court will mention this section too, whichever way it decides.

However, as I also mention above, when Justice Kennedy formulated this standard in Kerry v. Din, it is highly unlikely that anyone could have imagined that the Supreme Court, only two years later, would be dealing with a presidential attempt to ban almost 200 million members (for starters) of a major world religion from America's shores. In this radically different context, Justice Kennedy's standard needs to be looked at from a larger perspective than merely that of whether, as in Din, (and in Din's predecessor decision, Mandel) the government adequately explained the reasons for a visa denial to a single individual applicant.

In the case of the six Muslim country ban order, the president claims that "national security" is the sole reason for the ban, despite the overwhelming evidence of egregious bad faith, extended almost to the point of making a mockery of the entire judicial system, and the role of the courts as and independent branch of the government, that is listed at length in the 4th Circuit's decision and in other court decisions dealing with this issue showing beyond any rational doubt that the real reason for the ban was religious discrimination against Muslims.

As the these court decisions all agree in pointing out, a very large part of the evidence that the real reason for the ban as religious animosity, not national security, comes out of the president's own mouth, and while, much of it relates to campaign statements, it is easy to make the case that the president's actions after being elected and assuming office are entirely consistent with the worst and most blatant of his numerous anti-Muslim campaign statements, as recited in these court decisions.

It is not necessary to repeat this long list here, but to give just one example, Trump appointed his now disgraced national security adviser Michael Flynn, who called Islam a "cancer" rather than a real religion after the election, not during the campaign. The same is true with regard to senior presidential adviser Stephen Bannon, who has stated that the "West" (i.e. white Europe) is in a "War of Civilizations" with the Muslim world.

The argument being put forth by the DOJ and other defenders of the ban order that Trump's wild, openly bigoted campaign statements against Muslims (such as for example: "Islam hates us " - recalling horrible memories of Joseph Goebbels: "Die Juden sind unser Unglueck"), which shocked and were condemned by many other Republican leaders at the time, (including now Vice-President Mike Pence) should be ignored and forgotten is more than disingenuous - it is Orwellian -it is asking the courts to relegate the real reasons for the ban order, coming out of the president's own mouth as I have mentioned, to the "Memory Hole" described in the novel 1984.

The Justice Department is, however, not only asking the courts to ignore and disregard the obvious truth of the reasons for the ban order, but it is, by arguing in favor of almost unlimited presidential power to ban immigrants merely by saying the two magic words "national security", claiming that the president alone has the power to determine what the truth about his motivations for the ban order is.

This goes far beyond merely looking backward to the Chinese exclusion laws of the past. Instead, it points toward a Brave New totalitarian world of the future, where the president has not only the sole power to determine the law regarding entry of immigrants, but also what is true and what is false.

Is there anyone who is naive enough to think that if the Supreme Court bestows such enormous power on a single individual, this power will be used only against immigrants in the future, and not as a means to extinguish freedom and democracy for the American people as well?
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 email address is algaselex@gmail.com