There have been many court challenges to Donald Trump's white supremacist immigration agenda on the grounds of racial or religious discrimination, such as w his Muslim Ban and attempts to end TPS protections. These challenges have so far has some success.

Even in the case of the Muslim Ban, which was ultimately upheld by a narrow, ideological, right wing Supreme Court majority that chose to turn a blind eye to the Constitutional guarantees of religious freedom and equality in favor of a dangerously expanded view of presidential power, the version of the Ban that was finally approved was far more limited in scope that Trump's original Ban order.

Even Trump himself complained that the version of the Ban that was finally approved by his own Department of Justice was "watered down", see, POLITICO, June 5, 2017


The order which the Supreme Court majority ultimately approved was certainly a far cry from Trump's original campaign call for a "total and compete" ban on entry to the US by anyone belonging to the Muslim faith.

More recently, a federal judge in California issued a temporary restraining order against Trump's attempt to end TPS protection for citizens of several non-white countries, stating that the motivation for ending TPS was racial discrimination against the affected immigrants.

But, apart from challenging specific immigration actions by the administration on the grounds of racial or religious "animus" (as the 4th Circuit found in its unquestionably correct decision in the Muslim Ban litigation), there has been little, if any attempt by lawyers or the courts to analyze or evaluate the Trump administrations' immigration policies as a whole from the standpoint of upholding or enforcing racial or religious prejudice, otherwise known as white supremacy or "white nationalism".

However, in a recent article in the Stanford Law Review, two young women, both law professors at Stanford Law School. have shown beyond any serious question that Trump's entire immigration agenda id motivated by racism and animosity against non-white immigrants. The article,by law professors Jayashri Shrikantiah and Shirin Sinnar, is entitled:

Whire Nationalism as Immigration Policy (71 Stanford Law Review, March 2019)

Professors Shrikantiah and Sinnar begin theri article as follows:

"Two years into the Trump presidency, white nationalism may be driving the Administration's immigration policy...We do not use the term lighty, nor view all restrictions on immigration as inherently racist. Nonetheless, our review of the Trump administration's rhetoric and policies affecting nonwhite immigrants suggests this motivation.

This Esay argues that legal challenges to Trump's restrictive immigration policies should call out white nationalism as the underlying harm, both through raisng equal protection claims and in presenting the overall theory of the case.Despite longstanding barriers to raising equal protection claims in immigration law, asserting these claims can...offer an alternative vision for immigration law that rejects both racial criteria and the exceptional judicial deference long accorded to the political branches in immigration decisions"

Before continuing with a discussion of this article, it is worth noting that the origin of the "Plenary Power" doctrine giving the two "political" branches of the government such wide powers over immigration free from review by the courts was in openly racist ideology dating from the time of the first infamous Chinese exclusion laws in the 1880's.

Indeed, part of one of the leading decisions in this area. Chae Chan Ping v. US (1889) are so openly racist in the language used bu the Supreme Court itself that they almost sound like something that one might hear at a Donald Trump rally.

That decision, ins essence, held that, in essence, it was reasonable for Congress to make laws to bar members of an "alien race" (in that case, Chinese immigrants) from entering the US in order to protect "national security"

This is the same justification that was used by the Supreme Court in upholding Trump's Muslim Ban, which was based on the same spirit of bigotry against immigrants of a different color or religion 129 years later.

What has changed?

Is the racial motivation any different today when Trump rants about "border security" to cheering white nationalist supporters, or when Stephen Miller claims that brutal and inhuman administration policies such as locking children in cages or forcing legitimate asylum applicants to "remain in Mexico are merely "enforcing the immigration laws?

I will continue my discussion of Professor Shrikantiah's and Professor Sinnar's article in Part 2 of this series.

Roger Algase
Attorney at Law