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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, December 21, 2017

Justices Return Dispute Over DACA Documents to Lower Courts

New York Times
By Adam Liptak
December 20, 2017

The Supreme Court indicated on Wednesday that federal courts in California had moved too fast in ordering the Trump administration to disclose documents concerning its decision to end a program that protected some 800,000 young, undocumented immigrants from deportation.

In an unsigned opinion, the justices instructed the lower courts to consider the administration’s arguments on two threshold legal issues before requiring that the documents be turned over. The administration contends that its decision to end the program, known as Deferred Action for Childhood Arrivals, or DACA, was within its lawful discretion and that the courts are in any event without jurisdiction to review the matter.

“Either of those arguments, if accepted, likely would eliminate the need for the district court to examine a complete administrative record,” the Supreme Court’s opinion said. Should the courts reject those arguments, the opinion said, they should nonetheless consider requiring fewer documents to be produced and allow the administration to present arguments about whether particular documents are privileged.

There were no noted dissents from Wednesday’s opinion, which appeared to be the product of compromise. That was in contrast to the Supreme Court’s first order in the case on Dec. 8, when the justices split 5 to 4 along ideological lines. The more conservative members of the court were in the majority, and they allowed the administration to temporarily shield the documents.

The dispute arose in five consolidated lawsuits in California that accused administration officials of acting unlawfully when they abruptly rescinded the program. The plaintiffs include four states: California, Maine, Maryland and Minnesota.

Judge William H. Alsup of the Federal District Court in San Francisco ordered the administration to turn over internal documents concerning its reasons for canceling the program. A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit rejected the administration’s request to block Judge Alsup’s order, with the majority saying that the few documents provided by the administration had been inadequate in light of the magnitude of the decision to end the program.

In an emergency application to the Supreme Court, the solicitor general, Noel J. Francisco, asked the justices to step in. He said Judge Alsup’s order was an “extraordinary departure from bedrock principles governing judicial review of federal agency action,” given the practical burdens it imposed and in its intrusion into the administration’s internal deliberations.

In its opinion on Wednesday, the Supreme Court noted that the administration had produced just 256 pages of documents, of which “nearly 200 pages consist of published opinions from various federal courts.” In setting aside the Ninth Circuit’s ruling, the Supreme Court said it was not expressing any views on the merits of the dispute.

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