Court won't halt judge's demand for details on DACA cancellation decision

Politico

By Josh Gerstein

November 16, 2017

Court won't halt judge's demand for details on DACA cancellation decision

An appeals court has cleared the way for a federal judge to force the Trump administration to make public more of its internal documents on the decision to rescind the program granting quasi-legal status and work permits to so-called Dreamers.

A panel of the 9th U.S. Circuit Court of Appeals voted, 2-1, to rebuff the Justice Department’s attempt to halt U.S. District Court Judge William Alsup’s order that the administration turn over emails, letters, memos and legal opinions considered in the course of the decision announced in September to end the Deferred Action for Childhood Arrivals program created in 2012 under President Barack Obama.

Trump administration lawyers argued that Alsup’s order clearly exceeded his authority, but the majority of the 9th Circuit panel disagreed.

Judges Kim Wardlaw and Ronald Gould said in a ruling issued Thursday that the official record the administration submitted in response to more than half a dozen lawsuits challenging the decision was clearly inadequate.

“Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded,” Wardlaw and Gould wrote in a joint opinion.

The San Francisco-based Alsup also ordered disclosure of information about former Secretary of Homeland Security John Kelly’s decision in February to allow the DACA program to continue even as other programs set up to aid undocumented immigrants were abandoned. The appeals court’s new ruling also declined to disturb that decision.

While Justice Department lawyers argued that disclosing the additional information would intrude on executive branch and perhaps even presidential prerogatives, Wardlaw and Gould did not buy that.

“We are not unmindful of the separation-of-powers concerns raised by the government. However, the narrow question presented here simply does not implicate those concerns,” the judges wrote. They added that if White House communications were involved in the decision officially made by acting Secretary of Homeland Security Elaine Duke, there was no “categorical bar” to their disclosure.

9th Circuit Judge Paul Watford dissented, warning that giving DACA proponents and the public access to the broader set of document would impair internal debate on major policy decisions.

“Requiring routine disclosure of deliberative process materials would also chill the frank discussions and debates that are necessary to craft well-considered policy,” Watford wrote.

Watford said that since the administration claims that DACA’s cancellation was due to the risk that the program might be halted by litigation threatened by conservative states, he would not require officials to turn over records unrelated to the legal question.

“The order sweeps far beyond materials related to the sole reason given for rescinding DACA — its supposed unlawfulness and vulnerability to legal challenge. The order requires the inclusion of all documents mentioning DACA-related issues of any sort, and is overbroad for that reason alone,” the judge wrote. “But even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be made part of the administrative record absent a showing of bad faith or improper behavior.”

A Justice Department spokesman did not immediately respond to a request for comment. The administration could ask for review by a larger set of 9th Circuit judges or seek relief from the Supreme Court.

Alsup acted quickly Thursday night to keep the litigation in front of him moving forward. Just hours after the 9th Circuit ruled, he ordered the Trump administration to file the expanded set of DACA-related records in the court’s public docket by Wednesday at noon (Pacific Time).

“Tonight’s ruling takes us one step closer to holding the Administration accountable for its decision to rescind DACA. Our DACA Dreamers deserve to know we will fight for them at every turn for their rights and opportunities, so they may continue to contribute to America,” said California attorney general Xavier Becerra, who filed one of the lawsuits challenging the decision to rescind DACA.

Another appeals court, the New York-based 2nd Circuit, has temporarily halted similar orders from a Brooklyn federal judge, but the 2nd Circuit has not issued a final ruling.

Wardlaw and Gould are appointees of President Bill Clinton, as is Alsup. Watford is an Obama appointee.

For more information, go to: www.beverlyhillsimmigrationlaw.com