Tonight a divided Supreme Court put on hold a set of lower-court orders that would require the federal government to turn over additional 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 litigation challenging the decision to terminate DACA, a federal district court ruled that the government should submit documents beyond those that it turned over discovery, including documents from the White House and the Department of Justice and 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. Last week the government asked the justices to step in, and they did so, at least for now. In a brief, unsigned order, the Supreme Court indicated that the district court’s orders, “at least to the extent they require discovery and addition to the administrative record filed by the government,” would be stayed until the justices can act on the government’s petition challenging the orders.
Justice Stephen Breyer dissented from tonight’s order; he was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer wrote that the relief that the government is requesting is “a drastic and extraordinary remedy reserved for really extraordinary causes” – but this case doesn’t even “come close.” The Supreme Court’s cases, as well as those of the lower courts, Breyer argued, point to the conclusion that what the district court has asked the government to do falls squarely within its powers. Breyer had no sympathy for the government’s complaint that complying with the orders will prove burdensome. The “underlying agency action here is important,” he stressed, and the number of documents at issue in the case is “by no means an unusually large number of documents.” More broadly, he suggested, today’s ruling means that the court will likely be asked to step into “run-of-the-mill discovery disputes in many other matters” – whether the federal government is involved or not.
The DACA challengers’ response to the government’s petition is due on Wednesday, December 13, by 4 p.m. The justices are likely to act quickly once the briefing is finished.
This post was also published on SCOTUSblog.