This column by ACRU General Counsel Ken Klukowski was published December 9, 2017 by Breitbart.
WASHINGTON, DC—The Supreme Court temporarily blocked lower court orders late on Friday that would have forced disclosure of legally protected government documents—possibly involving President Donald Trump—regarding ending the Deferred Action for Childhood Arrivals (DACA) amnesty program for illegal aliens.
A federal appeals courts in 2015 struck down Deferred Action for Parents of Americans (DAPA), President Obama’s broad grant of amnesty to 4.5 million illegal aliens. President Trump shut down that illegal program after taking office.
Under President Trump, Attorney General Jeff Sessions determined that the DACA amnesty program—which covered 800,000 illegal aliens, many of them younger than DAPA recipients—was also illegal, for the same reasons the appeals court invalidated DAPA and is currently winding down that program before a court could order it shuttered.
DACA supporters filed multiple lawsuits against the Trump administration for ending the amnesty program, suing under the Administrative Procedure Act (APA).
Although Sessions’ U.S. Department of Justice (DOJ) filed a 256-page administrative record explaining the Trump administration’s DACA decision, a liberal federal district judge in California granted broad discovery orders in that case that would have forced disclosure of legally privileged government documents, possibly including direct communications with President Trump.
Breitbart News reported that DOJ petitioned for a very rare writ of mandamus to block the order as an unprecedented violation of the Constitution’s separation of powers, but the U.S. Court of Appeals for the Ninth Circuit sided with the trial judge for the most part.
Although all three appeals judges on the Ninth Circuit panel are liberal, one voted in favor of granting the DOJ’s petition, saying the trial judge’s discovery order “violates well-settled principles governing judicial review,” and thus, this is “a classic case in which mandamus relief is warranted.”
When the plaintiffs and trial judge refused to back off, U.S. Solicitor General Noel Francisco—Sessions’ top Supreme Court lawyer representing the federal government—applied to Justice Anthony Kennedy for a stay from the Supreme Court.
Late on Friday, the Supreme Court granted the requested stay by a 5-4 vote, blocking the lower court’s orders until the justices can receive a full briefing on whether to grant a writ of mandamus to permanently block this judicial intrusion into the deliberations of the executive branch. The Court is requiring the plaintiffs to file their legal briefs by Wednesday, December 13, to argue why the justices should not grant permanent relief to the administration.
Justice Stephen Breyer wrote a dissent for the four liberal justices, objecting to the stay.
There is also a parallel lawsuit raising identical issues out of New York, part of which is also currently pending on appeal. Friday’s order does not directly control the outcome of that case, although lower federal courts often change course to conform to the Supreme Court even when not directly ordered to do so.
The Supreme Court’s final decision on whether to grant permanent relief through a writ of mandamus could come down by the end of next week.
The case is In re United States, No. 17-801 at the U.S. Supreme Court, and No. 17-72917 at the U.S. Court of Appeals for the Ninth Circuit.