By Josh Gerstein
December 1, 2017
The Trump administration is asking the Supreme Court to block a judge’s demand that the government compile a broad set of records about how officials decided to shut down the program offering quasi-legal status and work permits to so-called Dreamers.
In an unusual emergency filing at the high court Friday, Justice Department lawyers said orders from San Francisco-based U.S. District Court Judge William Alsup threaten to intrude on confidential executive branch deliberations and are already causing a major diversion of federal resources to review more than 1.6 million documents potentially responsive to the judge’s orders.
“The White House, DHS, and DOJ will have been required to collect, review, and make privilege determinations as to thousands of additional documents; numerous deliberative materials will have been made public; various privileges, including executive privilege, will have been breached based on the district court’s existing erroneous privilege rulings (and any more that follow); and high-ranking government officials will have been deposed,” Solicitor General Noel Francisco wrote in a stay application filed with the justices. “Even if subsequently narrowed, further discovery is extremely likely to impose considerable burdens and thereby impair the performance of other essential DHS and DOJ functions.”
The Justice Department filed an “administrative record” of just 256 pages of documents, all of which had been previously released, in response to a series of lawsuits challenging the September decision to wind down the the Deferred Action for Childhood Arrivals program.
Alsup ruled that the limited set of documents was inadequate and that parties seeking to preserve the program are entitled to see memos and legal analyses that led to the cancellation of DACA.
The Justice Department’s formal request to the Supreme Court to take up the records issue paints Alsup’s decision as deeply flawed.
“This petition is addressed … to that court’s extraordinary departure from bedrock principles governing judicial review of federal agency action,” Francisco wrote.
While President Donald Trump gave officials the go-ahead to shut down the DACA program, the official decision was made by acting Homeland Security Secretary Elaine Duke at the urging of Attorney General Jeff Sessions.
Sessions said the program, created by President Barack Obama’s administration in 2012, was an illegal overreach by the executive branch and was vulnerable to being abruptly shut down by a threatened lawsuit from attorneys general conservative states.
However, the administration’s conviction about Sessions’ legal conclusion was thrown into doubt when Trump tweeted that if Congress didn’t pass legislation to accommodate the Dreamers in the coming months he will “revisit the issue.”
The Justice Department asked the 9th Circuit Court of Appeals to block an order from Alsup to file the expanded set of records, but in a 2-1 ruling last month, the appeals court panel assigned to the case declined.
DACA backers sought to head off a Supreme Court battle over the document issue by agreeing to defer the deadline until Dec. 22. However, Alsup made clear he wants the federal government ready to file the records on that date because he wants to resolve the suits in time to allow for an appeal well before March 5, the date when large numbers of DACA recipients will begin to see their permits expire without the possibility of renewal.
Justice Department attorneys say the monthlong reprieve the judge granted doesn’t solve the problem because they’re still obligated to invest massive resources in reviewing the records in order to be prepared to file them later this month.
A similar battle has played out on the East Coast, with a federal judge in Brooklyn ordering administration officials to submit to questioning about the DACA cancellation and to respond to document requests on the subject.
The 2nd Circuit Court of Appeals temporarily halted those orders, but that court has not issued a final ruling on the issue.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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