Update, July 30, 11:58 am:

Whenever I use the word "fascist" in writing about Donald Trump, I notice that my readership drops way down. But is any other word appropriate? The latest new is that Trump wants to "delay" (cancel) the November election. If this isn't fascism, it certainly isn't democracy.


As has been pointed out elsewhere, whenever Trump issues an executive order dealing with immigration, it inevitably winds up in federal court litigation. Is this because Trump's critics have nothing better to do than spend time. effort and resources opposing Trump in court just for the exercise? Or is it because Trump regularly uses executive orders as a means of overturning the laws and constitutional provisions that protect immigrant rights as a key part of his quest for absolute power?

In some instances, such as DACA and the Muslim ban orders, there might conceivably be coherent arguments on both sides of those issues. But in the case of Trump's latest executive order excluding unauthorized immigrants from being counted for the purposes of apportioning Congressional seats, his order is so clearly unconstitutional that no further discussion is necessary - as long as one accepts the proposition that immigrants, regardless of their legal status or lack of it, are human beings.

Evidently, Donald Trump seems to have a problem in understanding or accepting this basic point.

Any convincing discussion of this issue has to begin - and end - with Section 2 of the 14th Amendment to the Constitution, which states in relevant part (italic added).

"Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state..."

It is simply impossible to get around this plain language. The amendment doesn't say:

",,,counting the whole number of US citizens and
immigrants who are lawfully present in the United States..."


And the constitution certainly doesn't use the phrase "illegal aliens" - a phrase which cannot be found anywhere in the entire voluminous corpus of US immigration laws and regulations. Instead, the 14th amendment says that "persons" must be counted. To be sure, there are millions of immigrants in the US without legal status

But does that mean that these out-of-status immigrants are not "persons" (or as George Orwell, who is more relevant than ever in Donald Trump's America, wrote seven decades ago, that they are "unpersons")?

In Plyler v Doe, 457 U.S. 202 (1982) the Supreme Court only needed two sentences to dispose of an argument (by the State of Texas) that immigrants present in the US without legal status were not "persons" within the meaning of the 14th amendment. Justice Brennan, writing for the majority, said:

"Aliens, even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process of law by the Fifth and Fourteenth Amendments. (citations omitted). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country i unlawful from invidious discrimination by the federal government (citation omitted)."


That is all that needs to be said about the illegality of Trump's executive order on Congressional apportionment. But the question remains: Why would a US president issue an order which is so obviously illegal on its face and which cannot be supported by any existing legal authority?

Three reasons come to mind: First, Trump's entire immigration agenda, regarding legal as well as unauthorized immigration is based on the exact "invidious discrimination" that Justice Brennan condemns in the above opinion.

Second, Trump's immigration agenda is based on a denial of the essential "personhood" of immigrants as human beings who are entitles to basic human rights.

Third, and most dangerous of all, Trump's behavior, in immigration as well as many other areas beyond the scope of this comment is that of a president who believes himself to be above the law in every respect - a dictator, rather than the leader of a democratic country.

The way in which his immigration agenda fuels these three related aspects of the Trump presidency will be discussed in more detail in my next comment on this topic.


Roger Algase
Attorney at Law