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Justices block order that White House must turn over internal DACA documents

By Joy P. Waltemath, J.D.

In the evening of December 8, a 5-4 order from the U.S. Supreme Court blocked several federal court orders out of the Northern District of California that, had they not been stayed by the High Court, would have required the Trump administration to review and possibly disclose internal documents regarding its decision to put an end to DACA, the Deferred Action for Childhood Arrivals program.

In Regents of the University of California v. DHS, the district court ruled in part in favor of plaintiffs who had sought “completion of the administrative record” under the Administrative Procedures Act, arguing that the current record was incomplete “because it contains only documents personally considered by the [DHS] Acting Secretary (and then only some considered by her) and excludes any and all other documents that indirectly led to the rescission.” The court directed the administration to complete the record byadding to it all emails,letters, memoranda, notes, media items, opinions, and other materials directly or indirectlyconsidered in the final agency decision to rescind DACA, including:


all materials actually seen or considered, however briefly, by Acting Secretary Duke in connection with the potential or actual decision to rescind DACA (except as stated in the next paragraph below),


all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with written advice or input regarding the actual or potential rescission of DACA,


all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input regarding the actual or potential rescission of DACA,


all comments and questions propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actualor potential rescission of DACA and their responses, and


all materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA.

However, the Supreme Court stepped in, as requested, and granted the application for a stay that the administration had presented to Justice Kennedy. The Court stayed the district court’s September 22, 2017, October 17, 2017, and November 20, 2017 orders, “to the extent they require discovery and addition to the administrative record filed by the Government, are stayed pending disposition of the Government’s petition for a writ of mandamus or in the alternative a writ of certiorari.”

The liberal wing of the court, including Justice Breyer, with whom Justices Ginsburg, Sotomayor, and Kagan joined, dissented. In the view of the dissenters, the government was claiming that review of its decision terminating DACA must be based “exclusively on the documents that the Government itself unilaterally selected” to provide to the district court. Said Justice Breyer, “I am not aware of any precedent supporting the Government’s position.”

“The APA is clear that a court reviewing agency action must review ‘the whole record’ to determine whether that action is lawful. 5 U. S. C. §706. The basic question here is what constitutes ‘the whole record’ that the court must review. We held in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420 (1971), that the ‘whole record’ means ‘the full administrative record that was before the Secretary at the time he made his decision.’ Neither this Court nor the lower courts has ever read Overton Park to limit the ‘full administrative record’ to those materials that the agency unilaterally decides should be considered by the reviewing court.”

The case is In re United States, No. 17A570 (17–801).