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Government Wins DACA Battle

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Twelve days ago, I noted that "the Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program."  Today the Government won a battle, but the war goes on.

In the case of In re United States, et al., No. 17-801, the Government asked the Supreme Court for relief from an order to add to the administrative record a broad array of vaguely described documents.  Today, the high court held:

Under the specific facts of this case, the District Court should have granted respondents' motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is "committed to agency discretion," 5 U. S. C. §701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.

In other words, there is no need to compile a mountain of paper if the case can be resolved without it.  The Supreme Court also wants the Court of Appeals to supervise the District Court more carefully.
On remand of the case, the Court of Appeals shall take appropriate action so that the following steps can be taken. The District Court should proceed to rule on the Government's threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal under 28 U. S. C. §1292(b) if appropriate. Thereafter, the Court of Appeals or the District Court in the first instance may consider whether narrower amendments to the record are necessary and appropriate. In any event, the District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.

Does the high court sound a tad ticked off?  That last sentence states a principle of elementary due process that no federal district judge should need reminding of.  The justices evidently think Judge Alsup does need reminding.  Note the strong hint to certify for interlocutory appeal.  They want the Ninth Circuit to look at this case again before the Government has to assemble the mountain, and they will be looking at the Ninth's decision.

Unlike the December 8 order, no dissent is indicated.

Personally, I believe we do need to find a reasonable accommodation for people who committed no crime upon entry, being too young to form mens rea, who have never known any other country, and who have lived law-abiding, productive lives.  That is one of many aspects of our immigration problem, and it should be addressed in a comprehensive package.  And soon.

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