The Trump administration for now does not have to turn over additional documents related to ending the program protecting 800,000 undocumented immigrant children, a divided Supreme Court said Friday night.
The court's conservative justices granted the administration's request, pending further review of a lower court's order in a lawsuit challenging the end of the Deferred Action for Childhood Arrivals (DACA) program.
The court's four liberals added a dissent to the 5-to-4 unsigned order, saying the court was making a mistake in getting involved at this point.
The government "contends that review of its decision terminating DACA must be based exclusively on the documents that the government itself unilaterally selected for submission to the district court," wrote Justice Stephen G. Breyer. "I am not aware of any precedent supporting the government's position."
Breyer was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
A panel of the U.S. Court of Appeals for the 9th Circuit earlier this month agreed with a decision by U.S. District Judge William H. Alsup that states and organizations challenging the decision should see more of the emails, memos and legal opinions generated before officials of the Department of Homeland Security announced it was ending the program that protects "dreamers."
But Solicitor General Noel J. Francisco said in a filing to the Supreme Court that was unjustified.
"The district court's sweeping expansion of the administrative record — in the face of the acting secretary's contemporaneous and reasonable explanation for her decision — directly contradicts this court's precedents," he wrote.
The case challenging the DACA decision was brought by four states — California, Maine, Maryland and Minnesota — and Janet Napolitano, president of the University of California.
The appeals court panel, in a 2-to-1 ruling, said that what the administration had provided to challengers was not enough.
"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," Judges Kim Wardlaw and Ronald Gould wrote.
Strikingly missing, the judges said, were any materials from the February 2017 decision by then-DHS Secretary John F. Kelly to retain the program, before Trump announced in September he was ending the program.
"We are not unmindful of the separation-of-powers concerns raised by the government," the judges wrote. "However, the narrow question presented here simply does not implicate those concerns. We consider only whether DHS failed to comply with its obligation . . . to provide a complete administrative record to the court — or, more precisely, whether the district court clearly erred in so holding."
The five justices who granted the stay did not explain their reasoning but called for more briefing on the case next week.