DACA dispute won’t go to Justices — yet

The Trump Administration put off on Monday a move to draw the Supreme Court into the ongoing legal controversy over potential deportation of nearly 800,000 undocumented immigrant young people who have lived most of their lives in the U.S.

President Trump’s lawyers are dissatisfied with the actions of a federal judge in California who is handling five lawsuits against the Administration plan to end legal protection for those individuals, but they decided to try to work out a solution with lawyers for the challengers in those cases instead of immediately asking for help from the Supreme Court.  That remains an option, however, if those talks fails.

At issue in those five lawsuits at this point is the California judge’s decision that the Administration must disclose to the judge – and, potentially, to the challengers, too – internal government documents that led to the official decision in September to end the so-called DACA program – Deferred Action on Childhood Arrivals.   If that decision is ultimately upheld in the courts, and if Congress does not take action to protect the young immigrants’ legal right to stay in the country and work and study, that program would end as of March 5.

The challengers have demanded the turnover of a wide array of official papers – including some from the Justice Department and from the White House – so that the judge can decide if the ending of DACA was legally justified.   The Administration contends that the judge has no authority to compel such disclosures.

U.S. District Judge William Alsup of San Francisco had agreed with the challengers that the documents must be submitted – at least for the judge’s review – and he ruled last week that the turnover had to occur this week, by Wednesday.

On Monday, however, both the Administration and the challengers urged Judge Alsup to delay the deadline for turnover of the documents, and the judge did so; he gave the government another month – until December 22 – to prepare the documents so that the new deadline could be met if the judge has not further modified it.

That order disappointed the Administration, because it did not want to have to begin the process of assembling the documents until after the judge had ruled on two key legal questions that remain pending in the San Francisco court.  Those two questions are, first, whether the judge will dismiss the cases, at the government’s request, on the ground that courts have no authority to review the decision to end DACA, and, second, whether the judge will rule at least temporarily that the government cannot go ahead with the termination of DACA on the theory that it had no authority to take that action.

Last week, the Administration had vowed to take the dispute to the Supreme Court, as of Monday, to seek protection against the judge’s document-disclosure order.

Even though Judge Alsup on Monday gave the government less than it had asked in a delay of that order, Administration lawyers notified the lower courts that they would not take the controversy on to the Supreme Court for the time being.  Instead, they said, they would try to work out an agreement with the challengers’ lawyers to give the government more temporary options to avoid having to work on compiling the documents – an agreement that, even if reached, would have to be approved by Judge Alsup.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.