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Several Senior Republicans Just Told The Supreme Court That Trump's Asylum Ban Is Illegal

"[T]he government is simply wrong."

Posted on December 17, 2018, at 4:33 p.m. ET

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Lawyers who served in senior positions in several past Republican administrations, joined by other former Republican officials, told the Supreme Court on Monday that the Trump administration's attempted asylum ban is illegal.

"[T]he government is simply wrong" in its argument that federal asylum law allows the administration's new policy, the lawyers and officials argue in a Supreme Court filing.

The friend-of-the-court brief was filed by William Webster, the former director of both the FBI and the CIA; two former acting attorneys general, Peter Keisler and Stuart Gerson; and nine others.

The Trump administration's two-step effort included a federal rule and presidential proclamation that, when taken together, would bar asylum claims by those who enter the southern border outside of ports of entry. A federal judge put the new policy on hold before Thanksgiving, and the US Circuit Court of Appeals for the 9th Circuit turned down the Justice Department's request to put that injunction on hold.

On Dec. 11, the Justice Department took the matter to the Supreme Court, asking the justices to put the injunction on hold — allowing the administration to enforce the asylum ban — while the challenge, brought by the ACLU, proceeds.

The ACLU filed its opposition on Monday, arguing that the injunction "do[es] no more than preserve the nearly 40-year status quo codified by Congress."

"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 Republican brief, written by Richard Bernstein, 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."

The signatories represent decades of Republican leadership on legal, national security, and intelligence issues.

Webster was only the second confirmed FBI director in the bureau's history, a post he was nominated for by then-president Jimmy Carter. He took that job, however, only after resigning from a federal appellate judgeship for which he had been nominated by then-president Richard Nixon. He later was nominated by former president Ronald Reagan and confirmed by the Senate to run the CIA.

Gerson served as the head of DOJ's Civil Division during George H. W. Bush's presidency before serving briefly as acting attorney general at the start of the Clinton administration until Clinton's eventual nominee, Janet Reno, was confirmed. Keisler served as head of the Civil Division in the George W. Bush administration and served briefly as acting attorney general until Bush's nominee, Michael Mukasey, was confirmed. Keisler also was nominated, but never confirmed due to opposition from Democrats, to serve as a judge on the US Court of Appeals for the DC Circuit.

Political signatories include Ray LaHood, a former Republican member of Congress who had served as chair of the Intelligence Committee's Terrorism and Homeland Security Subcommittee and later served as Transportation secretary in the Obama administration; former New Jersey governor Christine Todd Whitman, who served as EPA administrator in the George W. Bush administration; and former member of Congress Chris Shays, who served as chair of the House Oversight Committee's Subcommittee on National Security and Foreign Affairs.

Other signatories included former DOJ official and Supreme Court advocate Carter Phillips and former State Department officials John Bellinger III and Samuel Witten. Also signing were Brackett Denniston, who worked in Massachusetts politics; Stanley Twardy, who served as the US attorney for Connecticut under presidents Ronald Reagan and George H.W. Bush; and Bernstein, the brief's lead author.

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