If the US Supreme Court ever actually makes a final determination (rather than the June 26 temporary ruling) concerning the IRAP v. Trump lawsuit involving Donald Trump's ban on entry to the US by almost 200 million citizens of six almost 100 percent countries (which I hereafter refer to as a "Muslim ban" rather than the misleading "Travel Ban" - since the affected people are free to travel anywhere they want under the president's order - just not to the United States!) the 1972 Supreme Court case of Kleindienst v. Mandel is likely to come under discussion as a claimed precedent, especially by supporters of upholding that ban order.

This comment will take a look and some of the main arguments for and against relying on this case as justification for upholding the ban, and will offer my own conclusion about the extent to which this decision should be followed, if at all, in the current Muslim ban litigation.

First, I will summarize the facts and result in the Mandel decision. In that case, Mandel, a Belgian citizen and Trotskyist writer and advocate, who opposed the US system of government and was openly committed to its overthrow, was denied a visa to meet with academics in the United States who wished to discuss his views face to face.

Clearly, Mandel was inadmissible to the US under a statute which expressly barred anyone who advocated the overthrow of the US government from coming to the United States.

However, the issue in that case was not whether the statute in question applied to Mandel or not - it clearly did - but whether the American citizens who claimed to have a first amendment constitutional interest in meeting with Mandel had the right to challenge the US visa officer's refusal to give Mandel a waiver of this prohibition, which the visa officer was expressly authorized to grant as a matter of discretion under that law.

The visa officer in question refused to grant a waiver, even though Mandel had been granted a waiver before and had actually entered the US with that waiver. The US academics, on Mandel's behalf, claimed that the US consular officer had failed to give an adequate explanation for denying the waiver.

The only explanation for the denial was that Mandel had allegedly violated the conditions of his previous visitor visa by engaging in activities in the United States that, in the visa officer's view, went beyond the scope of those permitted by that previous visa.

The plaintiffs in the lawsuit over that denial argued that the consular officer was obligated to give Mandel a fuller and more detailed explanation for the visa refusal. The Supreme Court majority held that the consular officer was not under any such obligation, and that the courts had no power to review any consular decision to deny a visa that was "facially legitimate and bona fide".

The main question is whether this standard is in fact the correct one to apply in the current IRAP litigation, and, if so, what does this standard actually mean?

At the outset, it should be pointed out that, under well settled law, our legal system distinguishes between two types of statements in previous court decisions in order to decide whether to follow them as precedents - statements which were essential to the precedent court's actual decision, known as a "holding", and those which deal with issues that were not actually involved in the litigation before the court and therefore not essential to reaching the court's decision.

These latter statements, which do not have precedent value and which future courts are not obligated to follow, are known as "dicta".

Of these two types of judicial statements, the test that a consular decision must be facially legitimate and bona fide was obviously dictum, because there was no claim of lack of good faith raised in the Mandel case and therefore, the question of whether the visa refusal was issued in good faith or not, was not before the Mandel court and was not essential to its decision.

Therefore, this so called "Mandel doctrine" (for lack of a better term), is merely non-binding dictum, which puts it on a shaky basis for use as a precedent in the IRAP v. Trump case.

But this is not the only factor that makes the "Mandel doctrine" highly questionable for use as a precedent in the IRAP v. Trump Muslim ban lawsuit. There is also another tool of legal analysis that every lawyer learns, almost from Day 1 of attending law school.

This is that if the "precedent" decision was distinguishable from the case before the court in some important or meaningful way, then that decision does not need to be followed.

Obviously, not every distinction between two different cases is important enough to be meaningful, or "material' as lawyers like to say. Suppose that in the first case, the plaintiff was a man 5 ft. 8 inches tall who parted his hair in the middle. But in the case at bar, suppose the plaintiff was a man who is over 6 feet tall and who parts his hair on the side (or who doesn't have any hair at all).

In most situations, unless the issue in both cases deals with acting or modeling, or in some other way depends on the person's physical appearance, this kind of distinction between the two cases would obviously be meaningless.

But in other types of cases, the distinctions may be so important that the reasoning which was the basis for the decision in the first case may not make any sense when applied to the second case.

Let us now look at some of the distinctions between Mandel and IRAP:

Mandel involved denial of a visa to just one person.

IRAP, by contrast, involves a presidential order, which, by a single stroke of a pen, makes almost 200 million people in six countries ineligible to enter the United States.

Second, in Mandel, the visa applicant was ineligible by US law to enter the United States to begin with because of opinions which were clearly hostile to the interests of the United States, and the only issue was whether he was qualified for a discretionary exemption from this law.

In IRAP, on the other hand, the 200 million people barred by presidential order would have not have otherwise been disqualified from entering the US unless there was some other legal reason for doing so on a case by case basis.

Third, in Mandel, the visa applicant, allegedly, already had a negative US immigration history; he was found by the visa officer to have violated the terms of a previous visa in the United States.

In contrast, the almost 200 million people banned by the president's Muslim ban order are ineligible to enter the US regardless of whether they have ever been in this country and done anything wrong here or not.

Does anyone see, so far, how the Mandel and IRAP decisions might be at least a "teeny - weeny" different from each other, just as, for example, 200 million people is just a "teeny-weeny" bit more than one person, and someone who has been in the US and (allegedly) violated the terms of a visa (while also advocating that our form of government is evil and should be overthrown) might deserve to be treated differently from someone who has never broken any of our laws and never said or done anything hostile to the United States?

But let's continue:

Fourth, since it has been a longstanding rule (originating in the time of the infamous 1880's Chinese exclusion laws about which I will have more to say below) that a foreign citizen does not have the right to challenge a US consular visa denial in court, but only an American citizen whose Constitutional rights are affected by the visa denial may do so, the Mandel lawsuit challenging the visa denial was filed by American academics who claimed that their first amendment free speech rights to meet with Mandel and discuss his views in person would be impaired if he could not come to the United States.

While the Supreme Court recognized that the American plaintiffs had a valid Constitutional interest in meeting with Mandel personally, the court also pointed out that there were other possible ways of communicating with hims and discussing his opinions, namely by transatlantic phone, which is what actually took place.

(For the benefit of younger readers, I should point out that in 1972, there was no such thing as Skype, no text messaging, no email; indeed - if one can imagine such a thing - no Internet at all.)

However, despite the need to rely on the ancient technology, dating all the way back to the late 19th century, known as the telephone, free and open communication and discussion between Mandel and the comparatively modest number of American academics who were interested in speaking with him was able to take place, so it was impossible to argue that the visa denial cut off their right to free speech entirely.

Therefore, while the effect of the visa denial on the Constitutional rights of American citizens was not wholly absent, it was difficult to show that it was overwhelming.

In the case of Trump's Muslim ban executive orders, the danger to the First Amendment right to free exercise of religion by some 3 or 4 million US citizen Muslims by barring almost 200 million members of their religion from entering the US solely because they are citizens of countries where almost 100 per cent of the population are Muslims cannot possibly by overstated.

Even if the president had not, as a candidate, called for a worldwide ban on entry to the US by adherents of the Muslim religion in December, 2015; even if he had not told CNN in March, 2016 that "I think that Islam hates us"; even if he had not - after becoming president - not during the campaign - appointed the since disgraced and fired General Michael Flynn, who has called Islam a "cancer" rather than a religion to a top national security advisory post, there cannot be any question that one of the main purposes of Trump's Muslim ban was to stigmatize Islam as a potentially dangerous religion, whose American citizen followers in the United States should be regarded with suspicion and opprobrium.

Indeed, while Trump has never himself suggested that American Muslims should be locked up, as was the case with Japanese-Americans during WW2, some have his supporters have raised this as a possibility, and Trump has himself has suggested that there should be "many databases" used to track the activities of American Muslims.

What does this say about freedom of religion in America?

Fifth, and this is arguably the most important distinction of all between Mandel and the IRAP v. Trump Muslim ban lawsuit, while the Mandel Court mentioned the issue of good faith almost as an aside in its above quoted dictum, that decision did not turn on any issue of good faith, because there was no finding or allegation in that case that the government tried to mislead Mandel or the US citizen plaintiffs about the real reasons for the visa denial or that its conduct was in any way deceptive.

In contrast, in IRAP v. Trump, allegations of bad faith, i.e. deceptive conduct by the president and his administration in promulgating and defending his Muslim ban orders, both the original seven country order and the current six country one are front and center of this entire litigation, if not the only real issue.

One has only to read the 10-3 majority opinion of the full 4th Circuit Court of Appeals, sitting en banc, which is now before the Supreme Court for review, to see this.

Neither the facts nor the opinion in Mandel provide any significant guidance for the courts as to how to handle a visa denial or entry ban case where there is evidence of bad faith in the decision. The pro forma dictum of the Court, arguably issued with an implied expectation that bad faith on the part of the US government would rarely if ever actually become an issue in such a case, does not provide any rationale which future courts are required to accept as binding.

Indeed Mandel provides no rationale at all for dealing with bad faith issues. Clearly, the Justices in that 1972 decision had no way of anticipating that Donald J. Trump would one day become the president of the United States

The forthcoming second part of my comment on the Mandel decision will discuss in greater detail what the Supreme Court may or may not have meant by use of the cryptic, unexplained words "facially legitimate and bona fide" in that case..

It will also discuss whether the doctrine that underpins the entire Mandel decision, namely that non-US citizens have no right to challenge a visa or entry denial in court, known as the "Plenary Power" doctrine, should still be adhered to by the courts in 21st Century America.

No court in the United States openly follows the Supreme Court's decisions upholding the idea of racial inferiority of American-Americans in Dred Scott (1857) or Plessy v. Ferguson (1897). Why should the courts continue to follow the Plenary Power doctrine, which had its origins in another thoroughly discredited Supreme Court decision based on the alleged racial inferiority of a certain immigrant group? (Chae Chan Ping, 1889.)

Roger Algase
Attorney at Law