High Court Sides With Feds on Discovery for DACA Challenge

WASHINGTON (CN) – Fighting to terminate a program that takes deportation off the table for qualifying young immigrants, the Trump administration won a Supreme Court stay Friday of a California challenge.

Party lines divided the Supreme Court on the case, with the court’s Democratic justices writing in dissent that the government has “not come close to” meeting its burden.

“The court today abandons its practice of nonintervention in this kind of discovery-related dispute,” Justice Stephen Breyer wrote in dissent. “In addition to disrupting the progress of this litigation, I fear that the court’s decision to intervene here means we will be asked to address run-of-the-mill discovery disputes in many other matters, certainly when the government is involved and potentially when it is not involved. In my view, the court should maintain its usual policy of abstaining from disputes like this one.”

The U.S. government drew the underlying court challenge in California several months ago when it announced an end date of March 5, 2018, for the program

Deferred Action for Childhood Arrivals.

Adopted in 2012 by the Obama administration, DACA offered certain legal protections to roughly 800,000 young immigrants who might otherwise be at risk of deportation.

In their bid to keep the program in place, California and other entities have said that the White House’s rollback announcement offered none of the policy justifications required by the Administrative Procedure Act.

Though the merits of the case are still unresolved, U.S. District Judge William Alsup issued several preliminary victories for the challengers this fall, directing the Trump administration to produce various Justice Department documents and communications that may have informed the Sept. 5 rollback decision.

The United States went to the Supreme Court on Dec. 1, petitioning for a writ of mandamus and a stay pending the grant of such extraordinary relief.

Though the order granting the stay Friday offers no insight to the court’s logic, Breyer’s 10-page dissent was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Breyer balked at the government’s contention “that review of its decision terminating DACA must be based exclusively on the documents that the government itself unilaterally selected for submission to the District Court.”

“I am not aware of any precedent supporting the government’s position,” the justice added.

The government has claimed that federal agencies have unilateral discretion to decide what documents they submit to the reviewing court. Breyer said “judicial review cannot function” in such a scheme.

“Effective review depends upon the administrative record containing all relevant materials presented to the agency, including not only materials supportive of the government’s decision but also materials contrary to the government’s decision,” he added. “A court deprived of a full administrative record could not consider, for example, whether the decision was based on the consideration of irrelevant factors, whether it considered the relevant factors, whether the decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,’ or whether the decision was unlawful for some other reason.”

Breyer noted that courts have shot down similar arguments by the government going back decades.

“The documents that the District Court ordered the government to provide are documents that were considered by the decisionmaker [Homeland Security chief Elaine Duke] or those advising her and that were ‘already in existence’ at the time of the relevant agency decision,” he wrote. “At least facially, these documents do not seem to involve ‘inquiry into the mental processes’ of the decisionmaker at all.”

Breyer questioned the government’s reliance on several cases, including the 2004 case Cheney v. United States District Court for D.C.

“Cheney concerned only requests for documents from the White House itself,” he wrote. “Such documents seem to form at most only a small portion of the documents that the District Court ordered the government to add to the administrative record, so Cheney cannot justify the broad relief from any obligation to complete the administrative record that the government seeks. And, moreover, the government has failed to argue with any specificity about the burden that the requirement to include White House documents in particular in the administrative record will impose, so it is impossible for this court to perform the sort of balancing analysis that we said was necessary in Cheney.”

As for the government’s claims to privilege, Breyer found these arguments unavailing.

“The closest the government comes is with repeated references to a single document out of the 35 that the District Court found not privileged and ordered it to produce,” he wrote. “The government describes it as a memorandum from the White House counsel’s office to the president. But even as to this one document, the government offers no legal or factual support for its claim of privilege aside from its bare description. The District Court reviewed that document, and the other 34, and concluded that they were not privileged. We have not seen these documents, and we consequently have no basis to question the District Court’s conclusion.”

Breyer said Alsup is being reasonable in offering to review in camera any documents the government believes are privileged.

Another of the government’s arguments that missed the mark for Breyer involves   burden. “The government complains that it must review 21,000 documents as potentially part of the administrative record,” he wrote. “But the underlying agency action here is important, and that is by no means an unusually large number of documents; administrative records often contain hundreds of thousands of documents. And, moreover, the government’s argument about burden is based almost entirely on how quickly it must comply with the District Court’s order.”

Breyer noted that the government could have requested more time from the District Court or to seek mandamus relief from the Ninth Circuit.

“The government has done neither,” he added.

As for the government’s claims of agency discretion, Breyer said this “goes to the merits of the respondents’ underlying lawsuit, which have not yet been addressed by the District Court and are not now before this Court, rather than to the proper contents of the administrative record assuming that the agency decision is subject to review.”

“The District Court on September 21 offered the government the opportunity to file an early motion to dismiss and thus obtain a decision on its threshold objections before the preparation of the administrative record,” Breyer continued. “The government rejected that offer, preferring instead to defer the issue to summary judgment motions. I see no reason to grant a writ of mandamus to relieve the government of the consequences of that decision. “

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