In its 2018 Trump v. Hawaii decision upholding Donald Trump's Muslim Ban proclamation (often misleadingly referred to a "Travel Ban", even though it is not a travel ban - the 200 million or so Muslims affected by the ban are free to travel anywhere in world they wish - as long as they stay away from the United States!) the Court wrote that INA Section 212(f) - the basis for the order - "exudes deference" to the power of the president to bar any immigrants he (or she) chooses from entering the US if their entry would be "detrimental" to US interests. Even in that decision, however, the Court engaged in a thorough review of the reasons that the president's order recited as a basis for claiming that it the ban was necessary to protect national security.

The High Court ruled that the president has "ample power" to bar immigrants. The decision not say that the president has total power to do so. The INA itself makes clear that the president's power to bar immigrants from entering the US is not total. INA Section 202(a)(1)(a) states:

"...no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of a person's race, sex, nationality, place of birth or place of residence."

While the above statute refers to visa issuance rather than US entry, the statute would be meaningless if it were interpreted not to include entry to the US. What purpose would there be in banning discrimination in the issuance of visas if the government was still allowed to discriminate by race or nationality when someone is entering with that visa?

Moreover, banning immigrants who are protected by the above statute would illegally prevent US consular officers from issuing visas to them,.since a visa cannot be granted to some who is inadmissible to the US by law.

Arguably, this statute was not at issue in the Muslim ban case. First, the statute does not prohibit religious discrimination, which was obviously the real purpose of the Muslim ban order, based on many vicious Islamophobic statements that Trump had made during the presidential campaign, including a promise to ball "all Muslims" from entering the US as soon as he took offices.

Second, the statute is limited to barring discrimination against people applying for immigrant visas, i.e. green cards. It does not protect applicants for nonimmigrant visas, who make up the great majority of people affected by the Muslim Ban proclamation.

But in the case ,of the Trump-Miller health insurance ban, the situation is entirely different. The health insurance ban is aimed directly, and exclusively at immigrants applying for or seeing to to enter the US with Immigrant visas. These are the exact people who are protected against racial or national origin discrimination by Section 212(a)(i)(A).

And there can be no serious argument with the fact that the purpose of the health insurance ban is to discriminate against immigrants from non-white areas of the world on the basis of race or nationality..

The TRO decision of the federal district judge in Oregon b;blocking the ban order specifically found that the ban would have a disproportionate impact on impact on immigrants from outside Europe.

It is impossible to dispute that finding on the basis of the actual facts. Therefore, while the Supreme Court may have arguably has some pretext for turning a blind eye toward the overwhelming evidence that Trump''s Muslim ban order was motivated by hatred and "animus" (to quote from the 4th Circuit's decision in that case) based on religion, there can be no justification for overlooking the obvious racial and national origin discrimination that motivated the health insurance ban proclamation.


INA Section 212(f) does not "exude deference" to that kind of presidential bigotry. Not does it protect against Trump's violation of law in issuing an obviously racially discriminatory ban on people seeking or holding legally issued immigrant visas.

This is yet another example of Trump's lawlessness and abuse of power with regard to immigration which the Democrats should be invesitgating for impeachment.


Roger Algase
Attorney at Law