Multiple Department of Justice lawyers past and officials who served during Republican administrations have filed an amicus brief in the U.S. Supreme Court to say that the Trump Administration is “wrong” about the asylum ban.
You may recall that President Donald Trump criticized Barack Obama-appointed U.S. District Judge Jon Tigar for ruling against his migrant asylum policy. Trump specifically criticized Tigar as an “Obama judge.” Tigar effectively blocked Trump from banning asylum seekers who didn’t enter the U.S. at an official port of entry, which memorably resulted in some Thanksgiving beef between the president and Chief Justice John Roberts. Trump’s Department of Justice then asked the Supreme Court to put the injunction on hold, arguing that the “nationwide injunction is deeply flawed and should be stayed pending appeal and, if necessary, further proceedings in this Court.”
Now some recognizable names among the amici curiae (“friends of the court”) have submitted a brief in the Supreme Court to criticize the Trump Administration’s arguments as “simply wrong” and that it cannot “improperly […] shift authority over asylum from Congress to the executive branch.”
“Amici include lawyers who worked in the executive branch of the Department of Justice during Republican administrations, including two former acting Attorneys General and a former director of the FBI, former Republican elected officials, and others,” they began. “Amici have an interest in seeing that, based on plain statutory text and neutral principles of construction, the Attorney General’s regulation [83 Fed. Reg. 55,934 [Nov. 9, 2018)], is not allowed improperly to shift governmental authority over asylum from Congress to the executive branch. ”
They contend that the “plain meaning of 8 U.S.C. § 1158” bars Trump’s asylum ban, even though the government argues that “subsection 1158(b)(2)(C) authorizes the Attorney General to issue a regulation that suspends asylum for aliens who illegally cross the southern border of the United States.”
“But subsection 1158(b)(2)(C) authorizes a regulation only if it is ‘consistent with this section,'” they say. “Under this requirement, the government is simply wrong that 1158(a) and (b) should each be read in isolation because they are ‘separate subsections.'”
This is the law in question and what it says:
8 U.S.C. § 1158(a)(1) provides that “[a]ny alien who is physically present in the United States or arrives in the United States (whether or not at a designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum.” Subsection 1158(b) addresses “conditions for granting asylum.” In particular, subpart 1158(b)(2)(C) provides the Attorney General with the limited authority to “by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph [(b)](1).” The issue addressed by this brief is whether it is “consistent with this section,” including 1158(a)(1), for the Attorney General to issue a regulation categorically banning asylum for all aliens who have crossed the southern border after November 9, 2018, at a place outside a designated port of arrival.
Because the Attorney General’s regulation was “inconsistent with the plain text,” they continued, “That should be the end of the matter.” In conclusion, they said, the application for a stay of the injunction should be denied.
The names of the amici curiae and their roles in government were as follows:
Peter Keisler, Acting Attorney General, 2007; Assistant Attorney General for the Civil Division, 2003–2007; Principal Deputy Associate Attorney General and Acting Associate Attorney General, 2002–2003; Assistant and Associate Counsel to the President, 1986–1988.
Stuart M. Gerson, Acting Attorney General, 1993; Assistant Attorney General for the Civil Division, 1989–1993; Assistant United States Attorney for the District of Columbia, 1972–1975.
William Webster, Director, Central Intelligence Agency, 1987–1991; Director, Federal Bureau of Investigation, 1978–1987; Circuit Judge, United States Court of Appeals for the Eighth Circuit, 1973–1978; Judge, U.S. District Court for the Eastern District of Missouri, 1970–1973; U.S. Attorney for the Eastern District of Missouri, 1960– 1961.
Carter Phillips, Assistant to the Solicitor General, 1981–1984.
John Bellinger III, Legal Adviser to the Department of State, 2005-2009; Senior Associate Counsel to the President and Legal Adviser to the National Security Council, 2001-2005.
Samuel Witten, Acting Assistant Secretary of State for Population, Refugees, and Migration, 2007-2009; Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration, 2007-2010; Deputy Legal Adviser to the Department of State, 2001-2007.
Ray LaHood, Representative, U.S. Congress, 1995– 2009; Member, House Permanent Select Committee on Intelligence, including Chairman of its Terrorism and Homeland Security Subcommittee, and Vice Chairman of the Intelligence Policy and National Security Subcommittee.
Christopher Shays, Representative, U.S. Congress, 1987–2009; Chairman, Subcommittee of National Security and Foreign Affairs of the House Oversight and Government Reform Committee; Member, Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment of the House Homeland Security Committee.
Christine Todd Whitman, Administrator, Environmental Protection Agency, 2001–2003; Governor, New Jersey, 1994–2001.
Brackett Denniston, Chief Legal Counsel to Republican Governor of Massachusetts William Weld, 1993–1996; Chief of Major Frauds Unit in the U.S. Attorney’s Office for the District of Massachusetts, 1982–1986; Former General Counsel, General Electric Company.
Stanley Twardy, U.S. Attorney for the District of Connecticut, 1985–1991.
Richard Bernstein, Appointed by this Court to argue in Cartmell v. Texas, 529 U.S. 513, 515 (2000); Montgomery v. Louisiana, 136 S. Ct. 718, 725 (2016).
You can read the rest of the brief below.
[Image via Chris Kleponis-Pool/Getty Images
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