Twelve days ago, the Supreme Court temporarily blocked a lower-court order that would require the federal government to turn over additional documents connected to the decision to terminate the Deferred Action for Childhood Arrivals policy, known as DACA – 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 that decision, a federal district court ordered the government to submit documents in addition to those that it turned over during discovery, and the court instructed the government to “be ready to file” a complete set of documents by December 22.
At the government’s request, the justices agreed to intervene. In an initial order on December 8, the justices put a hold on the district court’s order to give themselves time to rule on the government’s petition challenging the order. Tonight they acted again, two days before the December 22 deadline, vacating a ruling by the United States Court of Appeals for the 9th Circuit that had upheld the district court’s order.
In an unsigned four-page opinion, the justices observed that the federal government “makes serious arguments that at least portions of the District Court’s order are overly broad.” Before requiring the government to turn over documents, the justices explained, the district court should have ruled on arguments by the government that, if true, “likely would eliminate the need for” the government to turn over all of the documents at issue. The justices therefore instructed the 9th Circuit to send the case back to the district court so that it could do just that. If the government loses on those arguments, the justices suggested, then the lower courts can consider “whether narrower amendments to the record are necessary and appropriate.” And at the very least, the justices continued, when the government asserts that a document is privileged, the district court should not require the government to turn it over “without first providing the Government with the opportunity to argue the issue.”
The justices took pains to make clear that they were not weighing in on the merits of the underlying dispute. So tonight’s order ends the case at the Supreme Court at least for now, although there is no guarantee that it won’t return in 2018.