UPDATED Monday 5:53 p.m. The Trump legal team has temporarily put off their planned plea to the Supreme Court to block a judge’s order that it must disclose internal documents about how the Administration went about changing the DACA policy. Lawyers on both sides were maneuvering throughout the day Monday to head off an immediate move of the controversy to the Supreme Court, but the judge did not react as the Administration had wanted, so the dispute is now in a kind of limbo until one side or the other makes a new move. The developments will be monitored here.
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The Trump Administration plans to ask the Supreme Court on Monday to protect it from having to disclose to a federal judge the internal details explaining its policy to start deporting tens of thousands of young undocumented immigrants who have spent most of their lives in the U.S.
U.S. District Judge William Alsup of San Francisco has ordered Administration lawyers to file, by Wednesday, most of the documents that were considered in deciding to shut down the so-called DACA program, created by the Obama Administration more than five years ago.
DACA – the Deferred Action for Childhood Arrivals program – is due to end on March 5 under a decision the new Administration made in September.
DACA has allowed some 800,000 young people brought to the U.S. as children by their parents to remain in the country and to work and study, without becoming citizens.
A half-dozen lawsuits have been filed in federal courts in California and New York, seeking to keep the program going on the theory that ending it was illegal under federal law. In five of those cases in San Francisco, in Judge Alsup’s court, the challengers have complained that the government has turned over only a mere handful of papers that lay behind the decision. They want the papers in order to help show that the policy switch was not legally justified.
Both Judge Alsup and the U.S. Court of Appeals for the Ninth Circuit have ruled that what has been turned over is far too limited to allow the courts to rule on the legality of the September decision.
Last Thursday, the Circuit Court – dividing 2-to-1 – upheld Judge Alsup’s order requiring completion of a much more extensive file of background material that could have helped influence the decision that was made by Homeland Security Acting Secretary Elaine Duke but also pursued by President Trump and by Attorney General Jeff Sessions. The President said the end of DACA would not take effect until early March to give Congress time to decide whether it wanted to authorize DACA to continue. Several proposals to do that are now circulating in Congress.
Under Judge Alsup’s order, the duty to disclose internal documents would go well beyond those specific papers that Acting Secretary Duke personally examined, including any documents that may have had an indirect effect on the decision. The list would include e-mails exchanged by government officials, departmental memoes, policy directives, minutes of meetings, items considered by Duke’s staff, communications from White House officials and staff members, Justice Department communications, and any communications between Duke’s department and state officials. (Texas state officials had urged the government to end the DACA program, and threatened a lawsuit if that did not happen.)
The Administration intends to ask Judge Alsup to dismiss all of the cases filed by the challengers, contending that the decision to end the program was a matter solely for the Executive Branch to decide. In the meantime, it is resisting Judge Alsup’s order to disclose additional internal papers, relying on various claims of confidentiality for those documents.
The judge temporarily rejected those claims, as did the Ninth Circuit Court. If the government does not get permission from the Supreme Court to withhold the documents, it would be under Judge Alsup’s order to hand them over. The judge would not immediately pass them on to the challengers’ lawyers, but instead would review them, one by one, to see if a claim of confidentiality should be upheld as to any of them.
The dispute over compelled disclosure of the internal papers is a prelude to any ruling by Judge Alsup or a higher court on the legality of the September decision to halt the DACA program.
A similar program to protect undocumented parents of children who are U.S. citizens or who have permanent legal resident status was struck down by lower courts as beyond President Obama’s powers. The Supreme Court declined, by a vote of 4-to-4, to overturn those rulings.
The DACA program’s legality was not at issue in those rulings, but President Trump had vowed to end it when he was running for the presidency, as part of his plans for immigration policy.
When the program was formally ordered to be stopped, in the September decision, the main reason given was that the DACA program was not likely to survive a challenge in courts by state governments. So far, in Judge Alsup’s court, the Administration had turned over only 256 pages of documents, and 192 of those were simply public records of the courts’ rulings against the parents’ deferred deportation program.
In agreeing with Judge Alsup that that file was nowhere near complete in scope, the Circuit Court wrote: “Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protection to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible.”
On Thursday, soon after the Circuit Court ruling, Judge Alsup issued a new order requiring the Administration to obey his order and make the new filing by Wednesday.
In response, Administration lawyers on Friday notified the Circuit Court that they would be going to the Supreme Court no later than Monday to ask for an order to overturn the new disclosure requirements. In the meantime, they asked the Circuit Court to put Judge Alsup’s order and the Circuit Court ruling in favor of that order on hold to give the Supreme Court time to act on the government’s new challenge.
