The battle in Brownsville rages on. Texas filed a response to the government’s advisory, wherein it admitted to granting even more expanded DACA applicants not only before the court’s injunction, but after it.
Texas asserts the government’s truthfulness is in doubt, and urges the court to allow further discover to reveal what DHS is up to:
Defendants’ May 7 Advisory (ECF No. 247) and supplemental declarations (ECF Nos. 256-1, 256-2) further confirm the unwieldiness of the DAPA/DACA bu- reaucracy—so large and complex that not even Defendants have a full grasp of what their machinery is doing. That, in turn, creates serious questions about the reliability of Defendants’ representations concerning the enjoined Directive’s implementation. Indeed, Defendants have now admitted to violating the preliminary injunction by is- suing what they currently quantify as approximately 2,000 three-year terms of de- ferred action. ECF No. 247.
The facts regarding Defendants’ compliance seem to be constantly evolving, from injunction compliance (March 3 advisory), to 55 recipients of three-year terms after the injunction (disclosed at the March 19 hearing), and now 72 recipients of such terms after the injunction plus “approximately” 2,000 more—with Defendants still “refin[ing]” their understanding through “ongoing” efforts (May 7 advisory and supplemental declarations). And this is in addition to more than 108,000 pre-injunction beneficiaries of the Directive. Defendants’ recent discovery production involves such broad assertions of priv- ileges that Plaintiffs know little more about the circumstances behind the inaccurate information furnished by Defendants and their newly revealed violation of the pre- liminary injunction. Because this Court or its appointed designee may review the allegedly privileged materials, however, Plaintiffs in this Response suggest a path forward and a range of options available to the Court based on what those materials show. Plaintiffs suggest that, at a minimum, a compliance-assurance mechanism would be prudent—with exploration of the need for sanctions being a separate matter depending on what the withheld materials reflect about who knew the truth and for how long. Plaintiffs also suggest certain areas of further discovery that may help shed light on appropriate next steps.
Curiously, the government raises a “presidential-communication privilege”:
Presidential-communications privilege. So too, the presidential-commu- nications privilege, the question of its propriety aside, is at most a qualified privilege for which courts must “balance the public interests at stake in determining whether the privilege should yield in a particular case.” In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997).
Since discovery was granted, I had a lurking suspicion the White House’s communications would come out. Here it is.