Refusing to let the Trump Administration rely on its temporary Supreme Court victory over one judge’s demand to see internal records about why the government ended the “DACA” program for immigrant youths, a federal appeals court in New York cleared the way on Wednesday for a different judge to insist on disclosure of some of those records. The two judges are approaching this issue differently, the U.S. Court of Appeals for the Second Circuit said, so it did not need to follow what the Supreme Court had done.
Two federal trial judges, one on each Coast, are handling challenges to the Administration’s decision to put an end – as of March 5 – to the “Deferred Action for Childhood Arrivals” program, under which some 800,000 undocumented youths or children brought illegally to the U.S. by their parents have avoided being deported to home countries that they hardly knew.
Last week, the Supreme Court put temporarily on hold orders by the trial judge in San Francisco that would have required the Administration to hand over an apparently large number of documents bearing on its decision to nullify the “DACA” program, which was created five years ago during the Obama Administration.
The judge in California must first decide on an Administration claim that the challengers’ lawsuit cannot even go forward in that court, the Supreme Court order said. That puts off, at least for a time, the controversy over what documents must be sent for potential use in the California case. The District Court judge in that case is William Alsup.
Meanwhile, a federal trial judge in Brooklyn, N.Y., is moving ahead with document demands for use in a separate case there, and has already rejected the Administration plea to end the case without a trial or further proceedings. That case is before District Judge Nicholas G. Garaufis.
In the Second Circuit Court’s new order on Wednesday, permitting Judge Garaufis to press the documents demand, said that there are significant differences between what the two judges have done about access to government papers.
Judge Garaufis’s demand for documents is considerably narrow than Judge Alsup’s, the order said. Alsup has sought disclosure of documents that bear on the decision to end DACA, if such documents are found “anywhere in the government,” and thus that might include White House documents, while Garaufis is seeking only papers that were used by two Trump Cabinet officers or their first-tier subordinates, thus avoiding the constitutional “separation of powers” issue that might arise over judicial commands for presidential papers.
The scope of Judge Garaufis’s document demand, the Circuit Court said, would reach “dramatically fewer” documents than were being sought by Judge Alsup when the California judge’s action was temporarily set aside by the Supreme Court.
The Circuit Court said it had been “particularly attentive” to the Supreme Court’s action regarding the California case. But it went on to say that it was rejecting the Administration’s claim that its case against Judge Garaufis’s order had been strengthened by what the Supreme Court had done. The two situations, the Circuit Court added, “are significantly distinguishable” from each other, with Judge Garaufis proceeding more narrowly.
The Administration has the option – as it did in reaction to Judge Alsup’s demands – of asking the Supreme Court to curtail Judge Garaufis’s actions. It had not done so as of Wednesday afternoon.
Ordinarily, fights like those over the documents underlying the decision to end the DACA program are worked out in the federal trial court, and the Circuit Court noted on Wednesday how rare it is for appeals courts (including the Supreme Court) to step in to manage those disputes.
Its own practice in the face of pleas for it to oversee such a dispute, the Circuit Court said, it to get involved only when a document demand “is of extraordinary significance” or “there is an extreme need” to overturn what a trial judge had done in such a situation.
The Administration, in trying to fend off the demands for it to back up its decision to end DACA with documents supporting that action, has contended that it need only supply the papers that government agencies themselves decided the courts would need. In the “DACA” cases, it has handed over only a few hundred pages, mostly copies of court opinions, in order to show that it was justified in concluding that the program of deferred deportation for undocumented immigrant youths would be struck down in court once a threatened challenge were begun.
The Circuit Court, in turning aside the Administration’s objection to Judge Garaufis’s orders, remarked that a government agency does not have the authority to decide for itself what documentary record is needed when a court reviews that agency’s actions.
“Allowing the government to determine which portions of the administrative record the reviewing court may consider would impede the court from conducting the thorough, probing, in-depth review of the agency action with which it is tasked,” the Circuit Court said.
The Administration has the option – as it did in reaction to the document demands in the California case – of asking the Supreme Court to protect it from Judge Garaufis’s orders. It had not done so as of Wednesday afternoon.
