Friday night, the Supreme Court issued an Order (pdf.) staying a lower court ruling requiring the government to turn over thousands of documents related to the termination of DACA. The vote was 5 to 4, with Justice Breyer writing a 10-page dissent joined by Ginsburg, Sotomayor and Kagan.

The full Order and Dissent are embedded at the bottom of this post.

The U.S. District Court in Northern California is currently hearing a lawsuit brought by the University of California over the Trump Administration’s decision to end DACA.

On October 17, William Alsup, the federal judge presiding over the challenge, ordered the Trump Administration to produce all “emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to rescind DACA.”

Indeed, the judge specifically wrote that because the administration raised concerns about DACA’s legality, they had waived attorney-client privilege over such documents. “Defendants have waived attorney-client privilege over any materials that bore on whether or not DACA was an unlawful exercise of executive power and therefore should be rescinded,” Alsup wrote.

The government strongly opposed the judge’s order, writing in its appeal to the Ninth Circuit that it shouldn’t have to “file publicly documents protected by a variety of privileges including executive privilege, the deliberative process privilege, and the attorney-client privilege.” The Ninth Circuit panel voted 2–1 to uphold Alsup’s order. Highly-regarded Obama-appointee Paul Watford dissented. One of the judges in the majority, Kim Wardlaw, has been summarily reversed by the Supreme Court four times — virtually unheard of.

The background is that in 2012, the Obama Administration established Deferred Action for Childhood Arrivals, better known as DACA, to shield from deportation children illegally brought to the United States before June 2007 and before their 16th birthday. A coalition of Republican states, led by Texas, denounced the program as unconstitutional, arguing that the power to grant amnesty rests solely with Congress. In 2016, they succeeded in challenging in the Fifth Circuit another program called Deferred Action for Parents of Americans—a form of deferred action for the parents of U.S. citizen children. After Scalia’s death, the Supreme Court split 4–4 on DAPA, leaving it blocked indefinitely.

During the campaign, Trump promised to end DACA. But when Trump took office, John Kelly signaled that DACA would continue. Several states forced the Administration’s hand by threatening to sue to block DACA as well. Doing so would’ve put the government in the awkward position of defending a program Trump repeatedly attacked and pledged to undo. So on September 5, the Administration announced that it would end DACA in March 2018, leaving it to Congress to decide whether or not to write its protections into law.

Lawsuits immediately ensued.

Alsup’s order is now stayed until the Supreme Court decides whether or not to hear an appeal over the documents.

That’s all well and good. But I think that Justice Breyer’s dissent actually raises an interesting point. He argues, among other things, that the Supreme Court shouldn’t involve itself in the discovery process at the trial level. “This Court’s long-settled practice has been to leave these sorts of burden and discovery-related procedural disputes to the district courts, with occasional court of appeals intervention.” This is certainly a sensible and pragmatic opinion. But given what has happened in the past year, it’s apparent that we do actually need the Supreme Court to micro-manage every case that involves Trump.

In another DACA-related case in New York, Clinton-appointed judge Nicholas Garaufis attacked DOJ lawyers over Trump’s decision to end the policy. He demanded to know whether Trump was supporting Congressional efforts to maintain DACA’s protections, and called the Administration’s position “heartless.” I’m not so familiar with federal litigation, but I would imagine that it’s highly unusual for a judge to so boldly state his political opinions on a case he’s overseeing.

Since January, blue states, in partnership with many (but not all, see above on Paul Watford) Democratic lower-court judges like Garaufis, have moved to constitutionalize all Obama-era policies. In addition to challenging DACA, we have lawsuits claiming that Trump’s travel restrictions, abandonment of environmental programs, revising Title IX guidelines on sexual assault, withholding of Obamacare subsidies, reversing protections for transgender service-members, regulatory rollbacks, shrinking of national parks and appointment of acting agency heads are all unconstitutional.

With such a deluge of litigation, it’s easy to get bogged down debating the merits of individual cases. Indeed, some of them may even raise valid points and the Administration could be genuinely wrong. But the bigger picture, to me, is that it simply cannot be that every single departure from the Obama Administration violates the Constitution or statutory requirements. Because the #Resistance is arguing otherwise, and has so far succeeded in convincing forum-shopped judges to go along, the Supreme Court needs to be assertive and cannot simply trust the lower courts to handle these cases in good faith.

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US Supreme Court Stay of DACA Document Order by Legal Insurrection on Scribd



