This column by ACRU General Counsel Ken Klukowski was published November 22, 2017 by Breitbart.
WASHINGTON, DC—Justice Department lawyers are pushing back against unprecedented judicial efforts to interfere with President Donald Trump’s administration, including a fight over DACA and presidential privileges that could end up before the U.S. Supreme Court.
DACA is the Obama-era amnesty program for roughly 800,000 illegal aliens who entered the country as children. It is the precursor to DAPA, the Obama program that granted amnesty to as many as 4.5 million illegal aliens. DAPA was declared illegal by the U.S. Court of Appeals for the Fifth Circuit.
The legal reasoning that struck down DAPA would also invalidate DACA, so President Trump has started to wind down the program, consistent with his campaign promise.
Some groups have filed legal challenges to keep DACA going. Several lawsuits underway in different parts of the country—California and New York—include court orders that would overturn two centuries of judicial restraint.
When someone challenges a federal agency action under the Administrative Procedure Act (APA), the reviewing court examines the record which supports the agency’s decision. A 256-page record was provided in the California and New York DACA cases.
But the federal district judges in these cases have granted the plaintiffs’ requests to issue a discovery order requiring shockingly broad disclosures to the court. These orders require the U.S. Department of Homeland Security (DHS) to hand over pre-decisional discussion materials from the department, which are beyond the scope of the APA and protected from public disclosure under a form of executive privilege called the deliberative-process privilege.
The orders also require the White House to hand over documents. That is a stunning development because the White House is not an “agency” under the APA. It is instead the embodiment of the President of the United States, a separate and coequal branch of the federal government. Extending the APA to cover the White House violates the Constitution’s separation of powers as well as a possible violation of the highest form of executive privilege, the presidential communication privilege.
In response, the current head of the U.S. Department of Justice’s Civil Division, Chad Readler, asking the U.S. Courts of Appeals for the Second and Ninth Circuits to issue extremely rare writs of mandamus to block the district judges’ discovery orders.
The Ninth Circuit in a 2-1 decision declined to issue the writ, with the staunchly liberal three-judge panel holding that “the government has not met the high bar required for mandamus relief.”
But even one liberal judge on that panel, Obama-appointed Judge Paul Watford, dissented from that denial, highlighting how far from the norm the district court’s order is.
“The district court’s order violates well-settled principles governing judicial review of agency action,” the judge begins. “The order sweeps far beyond materials related to the sole reason for rescinding DACA—its supposed unlawfulness and vulnerability to legal challenge.”
“And to the extent the order will compel the production of communications between the Acting Secretary [Elaine Duke] and high-level official in the White House—including, potentially, the President himself—the order raises the same sensitive separation-of-powers concerns that made mandamus relief appropriate in [a 2004 Supreme Court case],” Watford continued.
“This strikes me as a classic case in which mandamus relief is warranted, and I would therefore grant the writ,” he concluded.
The Justice Department was about to seek emergency relief from the U.S. Supreme Court when the plaintiffs backed off their requests for the sensitive information in the district court, potentially shutting down the need for the justices to get involved at this stage.
The Second Circuit has not yet ruled on the mandamus petition before it, and a denial could still result in an emergency application at the Supreme Court.
Regardless of the outcome of these exceptionally unusual developments at this stage of the litigation, there is a significant chance that one or more of the DACA cases will end up before the nation’s highest court in 2018.
The appeal in the New York case is In re Duke, No. 17-3345 in the U.S. Court of Appeals for the Second Circuit, arising from a lawsuit before the U.S. District Court for the Eastern District of New York.
The appeal in the California cases is In re United States, No. 17-72917 in the U.S. Court of Appeals for the Ninth Circuit, arising from five lawsuits before the U.S. District Court for the Northern District of California.