Last night the federal government asked the Supreme Court to step into a dispute over documents related to the Trump administration’s decision to end the policy known as Deferred Action for Childhood Arrivals – a Obama-administration program that allowed undocumented immigrants who came to the United States as children to apply for protection from deportation. In an emergency filing, the government asked the court to block a set of orders issued by a federal court in northern California that would require the federal government to review (and potentially turn over) “hundreds of thousands of documents,” some of them privileged.
The orders came in litigation challenging the decision to terminate DACA. The district court ruled that the documents that the government did submit during discovery were not enough, and that the Trump administration should also have submitted documents from the White House and the Department of Justice, as well as additional documents from the Department of Homeland Security. The district court later instructed the government to “be ready to file” a complete set of documents by December 22.
In last night’s filing, the Trump administration emphasized that the lower court’s view of what records the government needs to provide is simply wrong – particularly when the government’s decision to end the DACA program falls squarely within its discretion. Moreover, it added, complying with the district court’s orders will “impair the performance of other essential DHS and DOJ functions.” “DHS estimates,” the government stressed, that “it would take at least 2,000 hours to respond to pending document requests alone.”
Late last night Justice Anthony Kennedy, who handles emergency requests from the 9th Circuit, called for a response to the government’s filing by 4 pm on Wednesday, December 6.