“[T]he government is simply wrong,” argue high-profile Republican lawyers in an amicus brief on the administration’s asylum ban.
The authors of the brief include former FBI and CIA director William Webster, former acting attorneys general Peter Keisler and Stuart Gerson, as well as nine others from the Departments of Justice and State.
The question presently before the Court is whether to allow President Trump’s ban on asylum along the southern border to take place while court challenges rise through the judiciary. This would take the form of injunctive relief that would prevent the new policy from being implemented until the courts had time to rule on its constitutionality.
The question of the actual constitutionality of the policy is months, if not years, from being settled.
“The relevant provision of federal asylum law begins with the command that ‘[a]ny alien’ who crosses the southern border illegally outside ‘a designated port of arrival … may apply for asylum,'” the brief said. “The Attorney General’s regulation is inconsistent with the plain text and meaning of [that law]. That should be the end of the matter.”
Based on their plain-text reading of the relevant laws, the group of Republican lawyers and experts argued that there was no reason to allow the ban on asylum to be implemented at all.
Given both that it would temporarily disenfranchise lawful asylum seekers and would require retraining and further future retraining when it ultimately fails court challenges, there is a measurable cost both in human and financial terms should the ban be allowed to stand.
“Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the executive legislate from the Oval Office,” wrote Judge Jay Bybee, a George W. Bush appointee, for the Ninth Circuit majority that initially blocked the policy’s implementation.
Other challenges to the asylum ban are on hold while this particular one is worked out by the Supreme Court and the lower courts in California. In large part, Judge Randolph Moss is comfortable in his delay because of the injunction preventing the policy’s implementation.
The Trump Asylum Ban fits with two larger policy programs of the Trump Administration, those being legal hostility toward migrants on the southern border which led to the construction of tent cities and child separation policies, as well as a broader hostility toward refugees and asylum-seekers in general.
These policy programs and in particular this ban on asylum are nakedly political, argue the Republicans in their brief.
“The continuing political significance of that topic was confirmed in the 2018 midterm election, where President Trump asked voters to elect Republican senators and representatives who would “change our . . . Immigration Laws” applicable to such migrants,” they wrote. “The President has been and remains free to propose statutory revisions to Congress.”
Instead, as Bybee put it, Trump legislates from the Oval Office. Despite his desperate hopes to the contrary, that isn’t how our system works. And in their filing, these legal experts have shown that this reality ought to transcend party.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.