Siding with the Trump Administration and splitting 5-to-4, the Supreme Court on Friday temporarily blocked a federal trial judge from requiring government lawyers to hand over all documents bearing on the decision to end the “DACA” program for younger undocumented immigrants — formally the Deferred Action for Childhood Arrivals.
The unsigned order, containing no explanation by the majority but drawing a ten-page protesting opinion by the four dissenters, might make it necessary for the judge in San Francisco to decide the legality of the DACA program cutoff without knowing much about why the Administration decided to end it. With the Administration order to “rescind” DACA due to take effect on March 5, the judge has been trying to move the case on a fast track to get a decision and all higher court review done by that date.
Trump Administration officials set the March deadline for the program to end to give Congress time to decide whether to rescue it with new legislation. Democrats in Congress are pressing hard to get action there before year’s end, but that attempt has gotten tied up in negotiations over the federal budget and a potential government shutdown, so no action may be taken before the new year.
Five lawsuits challenging the planned end of DACA are now pending before U.S. District Judge William Aslup. Those cases were filed by a small group of young adults who are among some 800,000 who have benefitted from the delayed deportation and work and study opportunities provided by the Obama Administration’s adoption of DACA five years ago, along with others supporting their cause. Those covered by the program were brought as children to the U.S. illegally by their parents, and have almost no ties to their countries of origin. They have come to be called “dreamers” because of their aspiration to grow up as Americans.
After first deciding to keep the DACA program in operation, the Trump Administration changed its mind in September and decided to end it, arguing that the program was likely to face a court challenge and was likely to be struck down as a result of that challenge. Judge Alsup and the challengers involved in the cases before him have been seeking access to documents that would show the reasoning behind the change of mind in September.
In response, the Administration has supplied only a small stack of documents, all already available in public records and confined to the records of court rulings in a prior, now-ended program on delayed deportation of undocumented adult immigrants. The judge has issued several orders demanding any document involving information that contributed directly or indirectly to the September decision.
At this point, the dispute that reached the Supreme Court does not involve the legality of the September decision; Judge Alsup has not yet ruled on that question. Rather, the Administration went to the Justices to get relief from the judge’s orders demanding the production of internal documents of the Departments of Justice and of Homeland Security, and perhaps a few files generated by the White House, before the decision was made.
Specifically, the Administration asked the Justices to put three of Judge Alsup’s document disclosure orders on hold until the Justices can rule on whether the judge and the challengers are entitled to obtain those records. That is all that the Court did on Friday evening.
As part of its order, however, the Court indicated that it intends to act quickly. It ordered the challengers to file a response by next Wednesday to the appeal asking the Justices to order the judge not to continue pressing for additional documents to justify ending DACA.
It is highly unusual for the Supreme Court to get involved in a dispute over document disclosure in cases pending in lower courts. Those usually are left to the discretion of trial judges, who are more familiar with the cases before them.
The new order blocking temporarily any enforcement of the judge’s further disclosure orders was supported by five Justices. Although they were not named, it was clear that it took five votes to take the action, and there were four dissenting votes, so the order had the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Anthony M. Kennedy and Clarence Thomas.
Justice Stephen G. Breyer wrote a strongly worded dissenting opinion; it was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
To the Administration’s argument that all that it needed to hand in to Judge Alsup was the records it deemed appropriate to support its action, Justice Breyer retorted: “I am not aware of any precedent supporting the government’s position.”
He added that court review of government agency actions “cannot function if the agency is permitted to decide unilaterally what documents it submits to the reviewing court.”
The dissenting opinion discounted all of the legal arguments and precedents cited by Administration lawyers, and concluded by saying that the majority had abandoned the Court’s long-standing practice of staying out of such document-disclosure disputes. Breyer said he feared this will open the way for many such disputes to reach the Justices from here on.
Judge Alsup is scheduled to hold a hearing on December 22 on the two sides’ dueling motions to end the case in their favor. The Administration wants the case dismissed outright, and the challengers want the judge to summarily rule that the cutoff of DACA was illegal. He may have to rule without any further documents bearing on the September decision. He had ordered the Administration to turn over further documents by that date.
It could take weeks for the Justices to finally resolve their part in the document dispute, if they decide, after getting the response of the challengers to the government appeal, to take on the task of making a final decision on which documents are, or are not, needed in the case.
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.
