In a highly unusual filing, a federal judge in San Francisco told the Supreme Court on Wednesday afternoon that there is no clear legal rule that he violated when he ordered the Trump Administration to disclose more fully how it made the decision to end the “DACA” program that protects young undocumented immigrants from deportation. The Deferred Action for Childhood Arrivals program, protecting as many as 800,000 youths or young adults, is now set to end next March 5.
In effect, U.S. District Judge William Alsup was making an argument to defend his actions. He also urged the Justices not to take any action that would disturb a schedule that would lead to a decision – before March – on the legality of the decision to end DACA. The judge has a hearing set for December 20 on key legal motions from both sides in the case. That hearing, he said, will have nothing to do with the dispute over disclosure of internal government documents.
It is normal, when a lower court’s action is challenged before the Supreme Court, for the judge or judges on the lower tribunal to leave the defense of their action to the parties formally involved in the case. Judge Alsup apparently decided not to follow the norm, and instead to submit his own pleas.
Two groups of challengers to the DACA-ending decision also sent in filings on Wednesday, urging the Justices to deny the Trump Administration’s plea for an order to delay and then a decision to overturn Judge Alsup’s order requiring fuller disclosure of internal documents that may have been considered by government officials in deciding in September what to do about DACA.
That program originated in the Obama Administration in 2012, and had no end date until the Trump Administration – pressured by the state of Texas – decided to shut the program down as of March 5. The time between September and that March date was designed to give Congress time to rescue the DACA program, if it wished to do so. Proposals to do just that are now circulating in the House and Senate, but their fate is uncertain at this point.
In going to the Supreme Court to challenge Judge Alsup’s orders, Administration lawyers had argued that the judge was intruding deeply into the inner workings of the Executive Branch, even seeking access to documents about the role of the White House itself. One of the arguments the Administration is making against such compelled disclosure is that it would interfere with a legal principle that protects the confidentiality of internal discussions – the so-called “deliberative process privilege.”
In Judge Alsup’s filing Wednesday, he argued that the Supreme Court has never recognized that claim in a case such as the one now before him on the fate of the DACA program. That case is governed by a federal law controlling how federal administrative agencies do their work, but the idea of a “deliberate process” claim got its start only in a different field – public requests for government documents under the Freedom of Information Act, the judge argued.
The law governing the DACA case, he added, demands that the government produce the “whole record” of a proceeding that is being challenged. The judge added pointedly: “There is no clear and indisputable law that the district court’s order [that is, Judge Alsup’s disclosure order] to make the record whole was in error.”
Among the documents that the Trump lawyers have already handed over – under protest — to the judge, but insisted that he keep confidential, were 84 documents on which it claimed a right to withhold them based on the disputed privilege claim. The judge told the Court that he had reviewed all of those documents privately, and rejected that claim on 48 of those 84, but he said he had still not shared them with lawyers for the challengers – a group of states as well as a group of individuals directly affected by the end of the DACA program.
Aside from the fight over internal documents, the dispute in Judge Alsup’s court, he noted, also involves whether the government must hand over records that reflect “verbal input” before the Administration opted to end the DACA program. The judge contended that the government has no “clear and indisputable right” to withhold some materials from a federal trial court.
At this point, the Supreme Court is not being asked by the Administration to rule on the legality of the DACA-ending decision. The sole issue right now focuses on what government documents must be filed with Judge Alsup – and potentially shared with the challengers’ lawyers – that bear on whether ending DACA was justified as a policy choice.
The Administration chose to shut down DACA based on only one claim – that is, that it would not survive a court challenge that the state of Texas had threatened if the program were not brought to a halt. Texas had led a coalition of 26 states that had successfully won a court challenge to another Obama deportation-delay program – one for undocumented adults who are parents of children who are U.S. citizens or who have legal permanent resident status. That other program has now ended, following a 4-to-4 split in the Supreme Court upholding those lower court decisions.
Responding to five lawsuits in Judge Alsup’s trial court challenging the ending of DACA. the Administration submitted only 14 documents, totaling 256 pages, that were already available publicly and composed mainly of the lower court rulings on that other Obama program.
The challengers, and then Judge Alsup, concluded that that was not all that went into the legal conclusion that DACA could not be defended legally. That has led to the legal jousting over which documents must be shared with the court and the challengers’ lawyers, and which can be legally kept confidential and withheld. At issue are documents of two Cabinet departments – Homeland Security and Justice – and at least some documents originating in the White House but available in Homeland Security files.
Ordinarily, such pre-trial disputes over a process called “discovery” play out entirely before the trial judge. However, the discovery process often leads to deep disagreements between the two contending sides on what information or documents are actually related to the legal issues in the case.
The Administration, however, has now taken this “discovery” controversy to the highest court, asking for a delay of Judge Alsup’s broadest disclosure order, and for review by the Justices of just what the government is legally obliged to turn over.
Among the challengers, in addition to the individuals affected by the DACA cutoff, are four states, the University of California system, the head of that system, and the city of San Diego. In two separate filings on Wednesday, the challengers contended that the Administration’s attempt to move the dispute to the Supreme Court was premature, and was being attempted without first contesting in lower courts Judge Alsup’s disclosure requirements. They also argued that the government lawyers had submitted to the Justices new evidence never offered before Judge Alsup.
Judge Alsup has set a December 22 deadline for the Administration to file the additional documents that support the DACA cutoff. If those are turned over, the judge would then weigh the government’s legal objections – document by document – before putting them formally into the record of the cases before him. The judge has been pushing the five lawsuits along on a fast track, saying he had to do so in order to have a decision made by him and reviewed by higher courts before DACA is to end on March 5.
It will take the votes of five of the nine Justices to delay Judge Alsup’s disclosure requirements, and five also to approve a direct order to that judge to withdraw or modify his disclosure orders. It would only take the votes of four Justices, however, to grant review of a decision by the U.S. Court of Appeals for the Ninth Circuit, refusing to block Judge Alsup’s disclosure commands. The Administration sought, as alternatives, both a direct order to the judge by the Justices or review of the Ninth Circuit’s decision refusing to lift the judge’s requirements for disclosure.
In their reply to the Administration’s pleas, the lawyers for six individuals directly affected by the DACA controversy argued that a failure to resolve swiftly the legality of the DACA cutoff could mean that the program would actually come to an end in March, with the result that thousands of younger individuals who have lived almost all of their lives in the U.S. would not only face deportations, with that threat forcing them to “make wrenching choices now of whether to leave their schools, jobs, and even their U.S. citizen children and other family members, as well as to their loved ones, employers, schools and communities, who themselves must grapple with the loss of these valued individuals.”