On December 22, a three-Judge panel of the US 9th Circuit Court of Appeals unanimously ruled that Trump's latest version of his Muslim Ban executive orders was invalid. However, the ruling was held in abeyance pending further action by the US Supreme Court. For a news story containing a link to the full decision, see:


Unlike an earlier ruling by the full 4th Circuit court on a previous version of the Muslim ban, this most recent 9th Circuit decision was not based on an analysis of Trump's own record of hate-filled statements against Muslims and their religion as a candidate, such as his infamous remark "Islam hates us", his call to ban all Muslims world wide from entering the United States, and his suggestions that US Muslim citizens should required to register and that their places of worship should be put under surveillance.

Instead, the main reason for the Court's decision was that the Ban order, by prohibiting citizens of six more than 99 per cent Muslim countries from entering the United States based only on their citizenship, without requiring evidence that any given visa applicant has any actual terrorist connections or otherwise poses a threat to US national security, violates a 1965 law specifically prohibiting the practice of barring immigrants from the United States on the basis of their national origin.

The Court tied the history of national origins discrimination against immigrants to America's history of racial discrimination in immigration in a way that is simply irrefutable. This shows, more clearly than anything else, what the real purpose of Trump's Muslim Ban is, and how the Ban is related to his larger agenda of trying to reduce or cut off all immigration to the US from non-white parts of the world.

The Court's decision included the following passage:

"Congress enacted Section 1152(a)(1)(A) of the INA contemporaneously with the Civil Rights Act of 1964 and the Voting Acts Act of 1965 to eliminate the 'national origins system as the basis for selection of immigrants to the United States.' H.R. Rep. No. 89-745, at 8 (1965). In so doing, Congress manifested its intent to repudiate a history of nationality and race-based discrimination in immigration policy."

Then, in a footnote (22) the Court made clear exactly what it meant by referring to America's history of nationality and race-based discrimination:

"The discriminatory roots of the national origins system may be traced back to 1875, when xenophobia toward Chinese immigrants produced Congress' first race-based immigration laws...These laws were justified on security grounds. See Chae Chan Ping v. United States 130 US 581, 606 (1889) (declining to overturn the Scott Act because 'the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security.')."

The 9th Circuit decision's footnote then continues:

"This underlying xenophobia eventually produced the national origins system, which clearly signaled that 'people of some nations were more welcome to America than others' and created 'token quotas' based on 'implications of race superiority'."

The Court then concluded that the "Proclamation" [latest six Muslim country ban executive order]

"...effectuates its restrictions by withholding immigrant visas on the basis of nationality. This directly contravenes Congress's unambiguous[] direct[ions] that no nationality-based discrimination...occur.' Legal Assistance for Vietnamese Asylum Seekers , 45 F. 3rd at 473."

In other words, Trump's Muslim Ban orders, including the latest one, are nothing less than an attempt to take America's immigration system back, not only to the spirit of the notorious 1924 "national origins" immigration act which banned most, if not virtually all, immigration to the United States from countries other than the "Nordic" ones of northern Europe, (thereby earning the praise of Adolf Hitler writing in Mein Kampf), but to the infamous Chinese exclusion laws themselves.

These exclusion laws, together with the above mentioned Supreme Court's 1889 Chae Chan Ping decision, are just as much a stain on America's history of discrimination against non-white foreign born people as slavery and the Dred Scott decision are on this country's history of discrimination against US born people of color.

By implication, therefore, the Court in effect ruled that taken purely on its own terms, without any need to look behind the latest Muslim Ban order into Trump's own history of bigoted statements (and actions) as a candidate (and president) against all Muslims and the Muslim religion, not just suspected terrorists or terrorist sympathizers, the Ban order fails to meet the rest of being "facially legitimate and bona fide" set forth by the Supreme Court in its landmark 1972 Kleindienst v. Mandel decision regarding non-reviewability of consular visa denial decisions.

It would be a mistake, however, to look at the Muslim Ban orders in isolation and assess them strictly on their own terms. As indicated above, they are only one part of a larger agenda of reducing or cutting off immigration to the US from all non-white parts of the world - an agenda which includes Trump's attacks on family immigration and the Diversity Visa lottery; his cancellation of DACA; his attacks on Sanctuary Cities and his other mass deportation policies; his exclusion of refugees at a time of unprecedented humanitarian crises in many parts of the world; and his support for the RAISE Act and opposition to H-1B and other skilled immigration visas.

We can expect Trump's white supremacist immigration policies to intensify and become even more extreme in the coming year 2018.

I will have more to say about Trump's larger agenda of excluding or substantially reducing immigration from non-white parts of the world in my next comment.

Happy New Year to all ilw.com readers.

Roger Algase
Attorney at Law