Neil Gorsuch and 5-4 Supreme Court Hide Documents To Protect Donald Trump

A new 5-4 Supreme Court Order [PDF] permits the Donald Trump administration to selectively withhold government information from court cases. The specific case involves the Deferred Action for Childhood Arrival (DACA) program, but the ruling under the Administrative Procedures Act applies to governmental administration generally and threatens to cover up much of what government agencies do in every area.

The Supreme Court Order was released without comment from the five Justices who signed on, but the other four issued a blistering dissenting opinion. They complained that administrative justice requires the government to turn over “the whole record.” They warned that “judicial review cannot function if the agency is permitted to decide unilaterally what documents it submits.” Extended highlights below.


Republicans retook their 5-4 majority on the Court earlier this year when they confirmed Donald Trump nominee Neil Gorsuch to the Court. The Neil Gorsuch confirmation came one year after former president Barack Obama nominated Merrick Garland, who was blocked from all consideration by Republican Senate Majority Leader Mitch McConnell. Never before had a popularly elected president been denied such consideration in all of American history.

Although there has been some personal banter to create the appearance that somehow Donald Trump and his pick for Supreme Court Justice are not happy with each other, Neil Gorsuch just cast the deciding vote for Donald Trump when it counts. This new Order is the first major indication that five Justices of the Supreme Court will do what it takes to protect Donald Trump.


While the five issuing the Order had nothing to say, Justice Stephen Breyer took the time to write out his disagreements in a detailed dissent, which was joined by three other Justices.

The lower court ordered that Donald Trump turn over documents. Donald Trump appealed the decision:

After the Government announced its decision to terminate DACA, respondents filed suit in the U. S. District Court for the Northern District of California to challenge the Government’s termination of the program under the Administrative Procedure Act (APA) and on other grounds. The merits of that challenge have not yet been addressed by the District Court, and they are not before us. But the Government has filed a petition for a writ of mandamus in this Court to challenge the District Court’s order that it provide additional documents to complete the administrative record concerning the Government’s decision to terminate DACA.

The appeal was a “drastic and extraordinary” emergency action:

A writ of mandamus is ‘a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’ “
… In my view, the Government’s arguments do not come close to carrying the heavy burden that the Government bears in seeking such extraordinary relief. With respect, I therefore dissent from the Court’s decision to grant a stay pending further consideration of the Government’s petition for a writ of mandamus.

Donald Trump administration gets to “unilaterally” select documents to reveal:

The Government thus 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. I am not aware of any precedent supporting the Government’s position.

General administrative law says the government is required to turn over “the whole record”:

The APA is clear that a court reviewing agency action must review “the whole record” to determine whether that action is lawful. 5 U. S. C. §706. The basic question here is what constitutes “the whole record” that the court must review. We held in Citizens to Preserve Overton Park, Inc. v. Volpe … that the “whole record” means ‘the full administrative record that was before the Secretary at the time he made his decision.”

Never before has the Supreme Court agreed to hold back documents in a case like this:

Neither this Court nor the lower courts has ever read Overton Park to limit the “full administrative record” to those materials that the agency unilaterally decides should be considered by the reviewing court.

Judicial review “cannot function” without the whole record:

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.

Finally, there is no precedent to support withholding the documents:

I am not aware of any precedent supporting the Government’s position.

This decision can now be used to hide what government agencies are doing across the board. Government is becoming more opaque and less accountable.