Ninth Circuit: Trump Administration Simply MUST "Comply With The Law" -- In California DACA Case

At the head -- I've been watching this piece of litigation, since it quite closely tracks one I'm involved in here in the federal courts in Chicago. But I've not reported on it until today. Out west, it has reached the Ninth Circuit on appeal, and has now articulated anew the unsurprising principle that Mr. Trump must comply with existing law.

Mr. Trump has claimed the right to end DACA without showing all the documents his administration relied upon to make a change in policy that impacts 800,000 Americans directly. He offered only 14 documents, totaling 256 pages of previously public materials. All but about 60 of those pages were court opinions. That sort of opacity is most usually seen in. . . tyranical oligarchies (Cough. Russia).

By way of contrast, here we are a government "of the people, for the people, and by the people. . . ." So the Judicial Branch has effectively told him to obey the law, on transparency, and separation of powers doctrines -- and thus to explain the real basis (as opposed to his odious political subterfuge) for his decision.

That an appellate level federal court must spend 18 pages and much research, crafting a formal written and published opinion of law, and has wasted oral argument time, as well as the plaintiffs' (and the taxpayers' money and time) on legal fees. . . all to reiterate what has been clear law for nearly 75 years, is -- well. . . astonishing. But that is Trump -- and here is a bit of the decision:

. . .At the initial case management conference before the district court, the government agreed to produce the complete administrative record on October 6, 2017. On that date, the government submitted as “the” administrative record fourteen documents comprising a mere 256 pages, all of which are publicly available on the internet. Indeed, all of the documents in the government’s proffered record had previously been included in filings in the district court in this case, and 192 of its 256 pages consist of the Supreme Court, Fifth Circuit, and district court opinions in the Texas v. United States litigation. . . .

Faced with this sparse record, and on the plaintiffs’ motion (opposed by the government), the district court ordered the government to complete the record to include, among other things, all DACA-related materials considered by subordinates or other government personnel who then provided written or verbal input directly to Acting Secretary Duke. The district court excluded from the record documents that it determined in camera are protected by privilege. . . .

Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded. . . .

The district court identified several specific categories of materials that were likely considered by the Acting Secretary or those advising her, but which were not included in the government’s proffered record. For example, the record contains no materials from the Department of Justice or the White House—other than a one-page letter from Attorney General Jefferson B. Sessions—despite evidence that both bodies were involved in the decision to end DACA, including the President’s own press release taking credit for the decision. . . . Nor does the proffered record include any documents from Acting Secretary Duke’s subordinates; we agree with the district court that “it strains credulity” to suggest that the Acting Secretary decided to terminate DACA “without consulting one advisor or subordinate within DHS. . . .”  And the proffered record contains no materials addressing the change of position between February 2017—when then-Secretary John Kelly affirmatively decided not to end DACA—and Acting Secretary Duke’s September 2017 decision to do the exact opposite, despite the principle that reasoned agency decision-making “ordinarily demand[s] that [the agency] display awareness that it is changing position” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

At oral argument, the government took the position that because the Acting Secretary’s stated justification for her decision was litigation risk, materials unrelated to litigation risk need not be included in the administrative record. Simply put, this is not what the law dictates. The administrative record consists of all materials “considered by agency decision-makers,” Thompson, 885 F.2d at 555 (emphasis added), not just those which support or form the basis for the agency’s ultimate decision. See also, e.g., Amfac Resorts, LLC v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (“[A] complete administrative record should include all materials that ‘might have influenced the agency’s decision,’ and not merely those on which the agency relied in its final decision.”) (quoting Bethlehem Steel v. EPA, 638 F.2d 994, 1000 (7th Cir. 1980)). . . . 

The district court’s decision to require a privilege log and evaluate claims of privilege on an individual basis before including documents in the record was not clearly erroneous as a matter of law. . . .

Now you know. Onward, in the district court in San Francisco, for discovery, and then back to the Ninth Circuit -- to a likely 45 loss, on the merits on its revocation, in the DACA decision. Sunny and crisp and cool here -- a great Friday shaping up, overall -- with my baby girl due in this weekend. Smile.

नमस्ते