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Supreme Ct blocks order that Trump Admin turn over DACA legal advice docs

Supreme Ct blocks order that Trump Admin turn over DACA legal advice docs

Justices 5-4 stay unusual order, with liberal Justices writing 10-page dissent.

Friday night, the Supreme Court issued an Order (pdf.) staying a lower court ruling requiring the government to turn over thousands of documents related to the termination of DACA. The vote was 5 to 4, with Justice Breyer writing a 10-page dissent joined by Ginsburg, Sotomayor and Kagan.

The full Order and Dissent are embedded at the bottom of this post.

The U.S. District Court in Northern California is currently hearing a lawsuit brought by the University of California over the Trump Administration’s decision to end DACA.

On October 17, William Alsup, the federal judge presiding over the challenge, ordered the Trump Administration to produce all “emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to rescind DACA.”

Indeed, the judge specifically wrote that because the administration raised concerns about DACA’s legality, they had waived attorney-client privilege over such documents. “Defendants have waived attorney-client privilege over any materials that bore on whether or not DACA was an unlawful exercise of executive power and therefore should be rescinded,” Alsup wrote. 

The government strongly opposed the judge’s order, writing in its appeal to the Ninth Circuit that it shouldn’t have to “file publicly documents protected by a variety of privileges including executive privilege, the deliberative process privilege, and the attorney-client privilege.” The Ninth Circuit panel voted 2–1 to uphold Alsup’s order. Highly-regarded Obama-appointee Paul Watford dissented. One of the judges in the majority, Kim Wardlaw, has been summarily reversed by the Supreme Court four times — virtually unheard of. 

The background is that in 2012, the Obama Administration established Deferred Action for Childhood Arrivals, better known as DACA, to shield from deportation children illegally brought to the United States before June 2007 and before their 16th birthday. A coalition of Republican states, led by Texas, denounced the program as unconstitutional, arguing that the power to grant amnesty rests solely with Congress. In 2016, they succeeded in challenging in the Fifth Circuit another program called Deferred Action for Parents of Americans—a form of deferred action for the parents of U.S. citizen children. After Scalia’s death, the Supreme Court split 4–4 on DAPA, leaving it blocked indefinitely.

During the campaign, Trump promised to end DACA. But when Trump took office, John Kelly signaled that DACA would continue. Several states forced the Administration’s hand by threatening to sue to block DACA as well. Doing so would’ve put the government in the awkward position of defending a program Trump repeatedly attacked and pledged to undo. So on September 5, the Administration announced that it would end DACA in March 2018, leaving it to Congress to decide whether or not to write its protections into law.

Lawsuits immediately ensued.

Alsup’s order is now stayed until the Supreme Court decides whether or not to hear an appeal over the documents. 

That’s all well and good. But I think that Justice Breyer’s dissent actually raises an interesting point. He argues, among other things, that the Supreme Court shouldn’t involve itself in the discovery process at the trial level. “This Court’s long-settled practice has been to leave these sorts of burden and discovery-related procedural disputes to the district courts, with occasional court of appeals intervention.” This is certainly a sensible and pragmatic opinion. But given what has happened in the past year, it’s apparent that we do actually need the Supreme Court to micro-manage every case that involves Trump. 

In another DACA-related case in New York, Clinton-appointed judge Nicholas Garaufis attacked DOJ lawyers over Trump’s decision to end the policy. He demanded to know whether Trump was supporting Congressional efforts to maintain DACA’s protections, and called the Administration’s position “heartless.” I’m not so familiar with federal litigation, but I would imagine that it’s highly unusual for a judge to so boldly state his political opinions on a case he’s overseeing.

Since January, blue states, in partnership with many (but not all, see above on Paul Watford) Democratic lower-court judges like Garaufis, have moved to constitutionalize all Obama-era policies. In addition to challenging DACA, we have lawsuits claiming that Trump’s travel restrictions, abandonment of environmental programs, revising Title IX guidelines on sexual assault, withholding of Obamacare subsidies, reversing protections for transgender service-members, regulatory rollbacks, shrinking of national parks and appointment of acting agency heads are all unconstitutional. 

With such a deluge of litigation, it’s easy to get bogged down debating the merits of individual cases. Indeed, some of them may even raise valid points and the Administration could be genuinely wrong. But the bigger picture, to me, is that it simply cannot be that every single departure from the Obama Administration violates the Constitution or statutory requirements. Because the #Resistance is arguing otherwise, and has so far succeeded in convincing forum-shopped judges to go along, the Supreme Court needs to be assertive and cannot simply trust the lower courts to handle these cases in good faith. 

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US Supreme Court Stay of DACA Document Order by Legal Insurrection on Scribd

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Comments

The federal courts, other than SCOTUS, are engaged in a coordinated effort with certain states to overturn the election by refusal to allow the president and his administration to implement his policies. The (mostly) Obama-appointed judges keep being overturned by SCOTUS, so I can only assume they are wrong on the law. It’s too bad that these judges are immune from any consequences to their actions.

    Jared Samilow in reply to Dave. | December 9, 2017 at 6:35 pm

    I actually haven’t noticed a difference between Obama and Clinton appointed judges.

      tom_swift in reply to Jared Samilow. | December 10, 2017 at 1:38 am

      I’d expect that. A judge appointed by one Democrat isn’t likely to differ in any useful way from one appointed by some other Democrat. What burns my biscuits is when one appointed by a Republican turns out to differ not a whit from one appointed by a Democrat. Like, say, the Chief Justice.

    Eight years of the obama/jarrett sewer spill takes quite a man – and a voter base – to clean up.

    We’ve now got both.

    How close we came to losing our way of life….

    notamemberofanyorganizedpolicital in reply to Dave. | December 11, 2017 at 11:30 am

    You mean they’re “colluding” with the Democrat Party.

Given the obvious and obstructionist judge shopping by the lefties, the SCOTUS must step in to slap down this process. The lower court “judges” have demonstrably proven themselves to be knee-jerk ideological hacks. They are wasting valuable court time and expenses throwing every manner of nonsense at the higher courts, hoping (in their biased hearts) that something will stick, or at least slow down the cascade of Obama failures.

President Trump was elected to do precisely what the lefty snowflakes hate the most: Reverse the outright assaults upon our Constitution initiated by the democrat party.

    Tom Servo in reply to bear. | December 10, 2017 at 8:35 am

    What I find very interesting is that I looked around the MSM this morning, and very few outlets are even reporting on this. I suspect the reason is Trump won, and they don’t know how to spin it or deal with it, so they are just ignoring it.

    They could go with the story that 5 conservatives overruled the 4 liberals on the bench, but even that leads to the conclusion that their entire try at taking back the presidency through lawfare is doomed to failure. So they don’t know what to say.

    notamemberofanyorganizedpolicital in reply to bear. | December 11, 2017 at 11:32 am

    Remove them and Sue them for malpractice.

Picture the Fifth Circuit upholding an order that Barack Hussein Obama be required to be stripped of the privileges of the Executive, deliberative process and the attorney-client, and produce all “emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to issue the DACA order.”

9-0 Decision, with Breyer writing a stinging concurrence lambasting the over-reach of a single Federal Judge to arrogate unto himself the powers of a duly elected President in violation of the Separation of Powers doctrine and the concurrence of a 3 judge Appellate Panel, joined by a former Associate White House Counsel and Solicitor General (Kagan like), a wise Puerto Rican, Justice Breyer (of course) and the Notorious RBG upon awakening.

What a travesty – President Trump’s numerous Judicial Appointments need to be seated ASAP.

I don’t see how these lawsuits survive summary dismissal, let alone get as far as discovery. The only arguments ever offered for DACA and DAPA were that they were legitimate exercises of executive discretion in prioritizing which laws to enforce, since there aren’t resources to enforce all of them. OK, let’s suppose for the sake of argument that we accept that, and 0bama had the right to set his priorities to suit his political preferences. Surely it follows that Trump has the equal right to do the same.

The legal advice he got was merely over whether he had to end DACA or he merely could do so. There is no possible argument that he couldn’t, any more than there was one that 0bama (and presumably all his predecessors) had to implement DACA in the first place, and were all violating their oaths by not doing so. So how could it be relevant to this suit?

    Yeah, I keep hearing this echo in the background whenever DACA/DAPA comes up with regard to Trump.

    “How *dare* you try to enforce the law of the US as written! Don’t you know how many people have broken it? Why, where would we be if we arrested everybody who broke the law?”

    DaveGinOly in reply to Milhouse. | December 10, 2017 at 1:38 am

    Agreed. It’s entirely irrelevant whether or not the Trump administration considers the Obama administration’s executive order legal or illegal – it was an executive order and every chief executive has the same right to rescind an executive order as the issuing executive had the (presumed) authority to decree it. If legal, Trump can repeal it because no law requires him to exercise the same discretion. If illegal, then it becomes Trump’s duty to repeal it because his oath of office prevents executive actions not authorized by the Constitution or Congress.

      DACA is not merely a prioritization of law enforcement resources. Prioritization of resources would only require that enforcement agents be told not to look for violators who meet these requirement or, if such are encountered, to take no direct enforcement action but to forward the violator information to their agency for later enforcement action. However, the Obama administration did far more than that. It not only chose to ignore violators, but went so far as to legitimize these previous and continuing violations of law by providing ongoing amnesty to violators who met certain criteria and inviting violators to take advantage of this amnesty by coming forward and registering with the federal government. This is the same as the President licensing all illegal meth labs and allowing them to continue operating without hindrance. It was de facto, as well as de jure, illegal for the administration to do this, as the President has no authority, under the law to do this.

        Milhouse in reply to Mac45. | December 10, 2017 at 11:35 pm

        That’s one way to look at it, which was the basis of the states’ lawsuit against DAPA, and their threatened lawsuit against DACA. But the way the 0bama administration viewed it, and the defense it offered against these lawsuits, was that it hadn’t legalized anything, that it had merely deferred enforcement against these low-priority offenders, but that since it had decided not to pursue them it was both foolish and inhumane to leave them hanging in constant fear and unemployable, so it gave them letters they could show employers to assure them that it was safe to hire them. I.e. it was not an amnesty but a sort of parole.

Trump doesn’t need permission from SCOTUS or anyone else to undo an executive policy of the previous administration. DACA was never federal law. Deportation is federal law. The four lefty morons need to stay in their lane.

Ginsburg: a warped liberal, who applies international law in her decisions.

Sotomayor: an utter moron as Supreme Justices go. She is the obama of Supreme Court Justices. (She can’t even say she’s the Serena Williams of men’s tennis.) The ass has been overturned 60%.

Kagan: ran harvard law school, post obama being head of the law review. What else needs to be said?

All I know is… 10 years from now… it’s gonna be awesome. There will be several hundred Trump appointed Federal judges all over the country, and this era of judicial activism will a memory. I’d wager, we’ll see profound differences within 2 years actually..

I think that Judge Alsup needs to go back to law school to take some remedial classes in Legal Ethics, with special attention giving to the subject of attorney-client privilege. His reasoning that the Administration had allegedly “waived” the privilege is obtuse and foolish.

You now see the face of the national monuments ruling to come. What an embarrassment that the dissenters believe that a Executive Order that favors their political party can not only be undone by another, but that it is subject to inspection by a District Judge as if he were president.

    Milhouse in reply to puhiawa. | December 9, 2017 at 11:46 pm

    Um, no. The Antiquities Act authorizes the president to declare national monuments, but it does not authorize him to undeclare them. Therefore it is indeed a one-way ratchet. It was very unwise of Congress to make such a law, but it did, and unless and until it changes it that is the law.

      DaveGinOly in reply to Milhouse. | December 10, 2017 at 1:49 am

      Could Obama have changed his mind, and rescinded his own executive order? I think by allowing a chief executive the discretion to make allotments of federal lands by executive order implies that the order can be rescinded. A chief executive has the prerogative to do so, and Congress would have to explicitly deny the executive such authority in the matter of allotting lands to national monuments, rather than merely not authorizing him to do so. (As a chief executive, Trump has as much authority to rescind a previous chief’s executive order as that chief had the presumed authority to declare it. Sitting presidents may change, but the law looks at them as an “officer” with certain authority, without regard for who actually holds the office. Trump’s rescission of an Obama executive order is just a president rescinding an executive order.)

        Milhouse in reply to DaveGinOly. | December 10, 2017 at 8:42 am

        Could Obama have changed his mind, and rescinded his own executive order?

        No, he could not. The law did not give him that authority. Once the monument is declared, only Congress can repeal it.

        I think by allowing a chief executive the discretion to make allotments of federal lands by executive order implies that the order can be rescinded.

        No, it does not imply any such thing. There is no legal basis for such an implication.

        A chief executive has the prerogative to do so, and Congress would have to explicitly deny the executive such authority in the matter of allotting lands to national monuments, rather than merely not authorizing him to do so.

        That’s very obvious garbage. Declaring national monuments is not a chief executive’s prerogative; it’s an authority that Congress chose one day to grant him, and that it could choose to take away at any time. Rescinding them works the same way; it’s an authority that Congress could choose to grant the president, but hasn’t.

        OleDirtyBarrister in reply to DaveGinOly. | December 10, 2017 at 1:26 pm

        Dave:

        Milhouse is not a lawyer and does not know the answer. He is way out of his depth, and you should not take his opinion as dispositive of the question.

        The Antiquities Act is silent as to removal or reduction in size, or whether a subsequent executive can make a determination that the existing declaration and reservation does not comport with the act’s mandate that “the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”

        https://www.nps.gov/history/local-law/anti1906.htm

        The questions, distilled down to its nub, is whether the power to un-do an executive action is incident to the power to do it in the first instance. The answer is not in black and white and will be arrived at by analogy construction. The executive branch has in its favor that it is charged with managing and maintaining Nat’l Monument and other public lands, and it has a standard to apply (i.e. the smallest area compatible with proper care and management).

        The constitution is silent as to whether a POTUS can unilaterally withdraw from a treaty that has been ratified by the Senate. Carter withdrew the US from a treaty claiming that withdrawal was an incident of executive power since the constitution did not require the advice and consent of the Senate to withdraw. SCOTUS held in Goldwater vs. Carter that the issue was not justiciable by the federal courts under the Political Question Doctrine.

        I have not had time to get my hands on the EO and see how he approached the matter, whether by declaring a new monument altogether, or approached it by just adjusting the boundaries to an existing monument. If Trump really wanted to stir the pot and make it a complicated issue for the opponents to challenge, he could make findings about the “small area” standard and the ability of the executive to manage the area. He should have passed an executive order with his findings on size and compatibility creating the monument by the same name (or perhaps a different one would be better), but with much smaller boundaries and an exclusion thereby built in. In other words, not acting to just lop off acreage to an existing monument but using the power to create as a power of abrogation and supersession (all to satisfy the “smallest area” for management standard). In the law, generally an action occurring later in time in conflict with prior action abrogates and supersedes. What comes later in time prevails. It would create a challenging question for a court: The executive branch clearly has the power from one term to the next, but does a president coming earlier in time somehow have more power under the act than the one coming later in time? Can a subsequent executive not make a determination about the “smallest area” if he is charged with managing the public property?

        On a smaller scale, the Supreme Ct of Georgia recently addressed a question of whether the power to terminate was incident to the power to create (hire in this instance). It ruled in favor of a mayor that it was incident and against the city council.

        http://caselaw.findlaw.com/ga-supreme-court/1704408.html

          Your analogy between treaties and national monuments doesn’t work.

          Treaties are an inherent part of the executive power of any sovereign nation, and had the constitution been entirely silent on them we would assume the president could make them and abrogate them unilaterally, as was (and still is) the case in the UK. The constitution breaks that assumption by requiring the senate’s advice and consent before the president can make a treaty. Since it is silent on abrogation, we can assume that power remains entirely with the president.

          But national monuments are a creature of congress. No president before 1905 had the power to declare them or revoke them, because they didn’t exist. Nor is there any difference in principle between them and national parks, which presidents can’t declare. So you could not argue that this is an inherent executive power. Congress decided in 1905 to create the concept, and to let the president declare them. By its silence on revocation it didn’t give him that power, but reserved it for itself.

          On to your second point. I agree entirely that Trump could declare that in his (advisors’) legal opinion 0bama’s declaration was invalid, because the monument he purported to declare was larger than Congress had authorized. But in doing so he would not be revoking the monument, he’d be saying that he believed there was no monument in the first place, and that he intended to act on that belief until a court told him otherwise. He’d be acting not under the Antiquities Act but under his duty to uphold the law as best he understands it. Then he could declare a new and smaller one de novo. But this could only last until a court reviewed the matter, and it would be bound to form its own independent opinion, and not to give his opinion any weight.

          OleDirtyBarrister in reply to OleDirtyBarrister. | December 11, 2017 at 11:21 am

          Milhouse:

          Find another hobby, perhaps pretending to be a doctor on the internet or a sex therapist. You have no clue.

      tom_swift in reply to Milhouse. | December 10, 2017 at 2:38 am

      The entire structure of the Federal government makes it impossible for any one man to commit the entire country to any courses, actions, laws, policies, etc. Everything requires the agreement of somebody else.

      The President doesn’t declare laws; he can only sign laws sent to him by the legislature. Once signed, he can’t un-sign them; they weren’t solely his work, and he can’t undo them on his own authority. Congress can change a law via another law, which as usual would need to be signed by a President. Nothing major is irrevocable. And nothing major is entirely determined by one man. Executive orders are solo acts, but they’re just instructions to the employees in the President’s own department, and can obviously be changed by other Presidents.

      Similarly, the President can’t declare war. He can’t commit the country to any sort of agreement with foreign countries; such agreements are called treaties, and the “advice and consent” of the Senate is not optional.

      The Presidential pardon power seems to be irrevocable, but that by definition involves only one person (or, perhaps, a corporation), which automatically limits its burden on the entire country.

      So the notion that any President, solely at his own discretion and on his own authority, can declare a special status for unlimited tracts of American territory, with no possibility of repeal or even modification by anyone else—specifically, a later President—is entirely ahistorical. Even bizarre.

        Milhouse in reply to tom_swift. | December 10, 2017 at 8:51 am

        So the notion that any President, solely at his own discretion and on his own authority, can declare a special status for unlimited tracts of American territory, with no possibility of repeal or even modification by anyone else—specifically, a later President—is entirely ahistorical. Even bizarre.

        Nobody ever suggested that national monuments can’t be rescinded. They’re a creation of Congress, and Congress can change its mind. It can repeal the entire concept, or it can rescind specific monuments, partially or entirely, as it chooses. It can also create yet a third kind of national thingummy, to join parks and monuments.

        But the president’s authority to unilaterally declare national monuments was granted to him by Congress, and it did not grant him a corresponding authority to rescind them. There are many things that presidents can do but not reverse. There are positions (e.g. commissioners) for which a president can hire someone, but not fire them, because Congress gave him one power but not the other.

      The mistake that you are making is that you equate reducing the size of the original national monument authorization with rescinding it. What Trump did, and Eisenhower did the same thing, is to reduce the geographic size of the two Obama monuments to more nearly reflect the wording of the statute, which is that the monument should only large enough to protect the archeological artifice in need of such protection. The monuments in question far exceeded that stipulation. , Trump adjusted them to be more in line with the statutory authority. He did not rescind the monuments.

        Milhouse in reply to Mac45. | December 11, 2017 at 12:21 am

        If 0bama’s declaration was too large then it was completely invalid, and there never was a monument in the first place. Trump can say so if he likes, but only until a court gets to examine the matter and give its opinion, which he would have to accept.

Indeed, the judge specifically wrote that because the administration raised concerns about DACA’s legality, they had waived attorney-client privilege over such documents.

But those are just a subset of the demanded documents. Even if we accept the reasoning implicit in “Defendants have waived attorney-client privilege over any materials that bore on whether or not DACA was an unlawful exercise of executive power and therefore should be rescinded.” it says nothing at all about the entire pile of all “emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to rescind DACA”. The argument presented concerns only the documents discussing DACA’s legality.

    Jared Samilow in reply to tom_swift. | December 10, 2017 at 3:06 am

    My characterization may have been a bit imprecise. Those were the documents that the DoJ objected most strongly to producing, so I focused on the judge’s rationale as to why their disclosure should be compelled. If you read the judge’s opinion, he goes through each class of documents and explains why he thinks the gov’t must produce them.

his was all a lawyerly fishing expedition, as is most of discovery. However, the motives for the President’s actions are moot. Even he if hated Mexicans, it would make no difference, as the underlying problem is that President Obama had no authority to grant an exception to certain people to violate the law nor did he have the power to make such an exception binding upon successor Presidents or the nation as a whole. And, if the actions taken by Obama, in setting up DACA, were unlawful, his successor could not reasonably be expected to continue them.

So, this was merely a ploy to find anything that could be used to embarrass the President and the administration. And, granting this broad a discovery would be ludicrous.

OleDirtyBarrister | December 10, 2017 at 12:47 pm

Milhouse is playing lawyer on the internet again.

Do you have any other hobbies?

OleDirtyBarrister | December 10, 2017 at 12:51 pm

The liberal movement to “fundamentally transform America” is still underway, and the marxists in the judiciary are trying to do their part.

Sessions and Trump’s advisers are pikers. They should take the “Sue And Settle” method to new heights for conservatives, including DACA. The DAPA suit down in TX should have been amended by consent and the arguments against DACA presented, then a settlement including a permanent injunction entered. BOOM!

How the administration came to its opinion is irrelevant. The court’s opinion of whether the administration has the authority to “reverse DACA” or not controls.

Indeed, the question of whether the administration has sufficient authority to implement DACA is the point of contention … and unusually, the administration is claiming it does not have authority, absent legislation.

The court looks forward to the lower courts fulfilling the federal judiciary’s primary role in matters of this kind, in determining the constitutional authorities and legislative authorizations that apply, or do not, to all parties claims in this matter.

Meanwhile, the document request is rejected as nonsensical.

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