This column by ACRU General Counsel Ken Klukowski was published December 21, 2017 by Breitbart.
WASHINGTON, D.C.—Attorney General Jeff Sessions on Wednesday won the first legal battle at the Supreme Court over DACA.
The unanimous decision threw out orders by a federal trial judge and the Ninth Circuit appeals court requiring disclosure of sensitive government documents—papers which may include communications with President Donald Trump about the decision to end the amnesty program.
Two amnesty programs for illegal aliens were operating when President Trump was inaugurated. The first was DACA (Deferred Action for Childhood Arrivals), concerning illegal aliens brought to the United States at a young age, which covered 800,000 people. The second was DAPA, which broadened DACA’s terms to cover at least 4.3 million illegal aliens.
In November 2015, the U.S. Court of Appeals for the Fifth Circuit held DAPA was illegal. The Obama administration appealed that decision to the Supreme Court, but after the unexpected death of Justice Antonin Scalia, the justices tied 4-4 on the case in October 2016, leaving the Fifth Circuit’s decision in place.
President Trump ended DAPA upon taking office, consistent with the Fifth Circuit’s decision. Sessions then made a determination that the reasons DAPA was illegal also made DACA illegal. At the U.S. Department of Homeland Security (DHS), Acting Secretary Elaine Duke accepted Sessions’ legal analysis, and started to wind down DACA.
Leftwing activists sued under the Administrative Procedure Act (APA) in one of California’s federal courts. The case went to Judge William Alsup, a liberal judge appointed by Bill Clinton. Alsup ruled that the 256-page administrative record the U.S. Department of Justice (DOJ) submitted to the court was insufficient, ordering the Trump administration to produce all materials that Duke considered in making DHS’s decision. This would encompass all documents containing internal deliberations, including those from the White House, and even any communications involving President Trump directly.
DOJ appealed to the U.S. Court of Appeals for the Ninth Circuit, requesting a rare writ of mandamus to block Alsup’s order. The appellate court sided with the lower court by a 2-1 vote. The dissenting judge expressed concern that this order violated legally privileged material, including documents shielded by executive privilege.
U.S. Solicitor General Noel Francisco, Sessions’ top appellate lawyer, then petitioned the Supreme Court to step in.
On Wednesday, the Court issued a 4-page unanimous per curiam opinion in favor of President Trump, explaining:
In the District Court litigation [the plaintiffs] argue that the Acting Secretary’s [Elaine Duke’s] determination to rescind DACA in the near future is unlawful because, among other reasons, it violates the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment, including the equal protection guarantee implicit in that Clause.
“The Government makes serious arguments that at least portions of the District Court’s order are overly broad,” the Court continued. The justices went on to instruct the lower courts on which issues they needed to resolve before persisting on seeking this sensitive material.
“In any event, the District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue,” the opinion continued.
The Supreme Court vacated (i.e., threw out) the Ninth Circuit’s decision, and sent the case back to the lower courts to carry out the justices’ directions.
Although this is not a final decision on the lawsuits, the Supreme Court’s unanimous decision on the first aspect of the litigation to reach the nation’s highest court is an unmitigated victory for President Trump and Attorney General Sessions on the hot-button issue of DACA.
The case at this stage is In re United States, No. 17-801 at the U.S. Supreme Court.