We now await the filing of the Dreamers' lawyers, come Wednesday evening. Please read Justice Breyer's dissent.
I think, in the end, his view will prevail. We are only at the curtain of Act I, in a three act play, before the Supremes, on DACA. Below are (to my eye) the most salient bits:
. . . .Indeed, judicial review cannot function if the agency is permitted to decide unilaterally what documents it submits to the reviewing court as the administrative record. Effective review depends upon the administrative record containing all relevant materials presented to the agency, including not only materials supportive of the government’s decision but also materials contrary to the government’s decision. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43–44 (1983).
Otherwise, the reviewing court cannot engage in the “thorough, probing, in-depth review” that the APA requires. Overton Park, 401 U.S., at 415–416. A court deprived of a full administrative record could not consider, for example, whether the decision was based on the consideration of irrelevant factors, id., at 411–412; whether it considered the relevant factors, id., at 416; whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. . . ."
I do not see how we can restrain by mandamus an order that the Government merely fears that the District Court might enter in the future. . . .
And here is where things stand -- in the trial court in the Northern District of California. So onward, to Wednesday, at 4 PM EST. And so it goes -- with a sweet baby sleepover, in a few hours, now. . . adios!
नमस्ते
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Tonight, December 20, 2017, the Supremes in an unsigned four page opinion -- which says nothing about the "on the merits" dispute -- have instructed the trial level court to rule on whether any of the Trump administration threshold defenses are valid -- and if so, they would obviate this document production issue.
The central threshold defense is that the DACA repeal order is unreviewable.
I predict the able trial judge in the northern District of California will say it is in fact reviewable, at least for compliance with the APA.
That will lead to a slightly narrower production request, and that in turn will be certified for appeal, right back up to the Supremes.
One could be forgiven for thinking that the Supremes expect that 45 is never actually going to dump DACA. . . and so there is this convoluted set of "procedural slow freeze" to-and-'fro going on -- until the issue may be allowed to die out, of 45's own volition.
And in that way, the Supremes won't have to (once again) rule to curtail what 45 sees as his executive branch powers. The Supremes plainly don't want 45's bad acts curtailing future, more legitimate, exercises of executive power.
That's my take, at least.
Namaste. . . .
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