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Supreme Court hands Trump partial victory in lawsuit over citizenship question for 2020 census

Supreme Court hands Trump partial victory in lawsuit over citizenship question for 2020 census

Issues stay of deposition of Sec. Wilbur Ross, with possible broader stay of litigation to follow.

On Monday night, the Supreme Court granted the Trump administration’s request to shield Commerce Secretary Wilbur Ross from being deposed in a lawsuit over the addition of a citizenship question to the 2020 census. But the Court declined to block the deposition of acting Assistant Attorney General John Gore, as the administration had also asked.

It’s tough to say whether the White House should view this compromise — presumably brokered by Chief Justice John Roberts—as a win, loss or draw. Time will tell what impact it has on the census litigation.

But more broadly, the Court’s split-the-baby approach certainly doesn’t bode well for anyone hoping that the reinforced conservative majority will soon put an end to the lower courts’ ongoing power struggle with the Trump administration. Indeed, in a partial dissent, Justice Gorsuch, joined by Justice Thomas, criticized the majority for not going all the way, saying that they would’ve halted both depositions and all discovery outside the administrative record.

The case at hand comes from Federal District Court in Manhattan, where Judge Jesse M. Furman, an appointee of President Obama, is presiding over challenges to Secretary Ross’s decision to reinstate an old citizenship question on the 2020 census. The question asks respondents whether or not they are U.S. citizens, information the Commerce Department claims is helpful to enforcing the Voting Rights Act.

The plaintiffs are New York, other blue states, and assorted interest groups, and they allege that Ross’s true motive in adding the question is—what else?—racism: to depress responses from immigrants so as to diminish the representation of diverse states like New York and California.

Courts do, of course, hold facially neutral policies unlawful when they are a pretext for discrimination. But, Gorsuch writes, “leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification.” In this case, the only evidence of bad faith the plaintiffs have presented is that Ross personally overruled subordinates who opposed the question and, supposedly, was untruthful about when he first considered reinstating it. Oh, and that Trump has said mean things about immigration in other contexts.

Depositions of Cabinet members are astonishingly rare, the most recent one having taken place in 1999. You don’t normally get to depose a secretary simply because they were personally involved in a decision, nor because you invoke the magic incantations “bad faith” or “animus.”

Gorsuch further assailed Judge Furman’s entire approach to the case:

But there’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape. Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.

To help “probe the Secretary’s mental processes,” as Gorsuch amusingly puts it elsewhere in his opinion, the plaintiffs sought, and Judge Furman agreed to compel, depositions of two high-ranking Executive officials: Acting Assistant Attorney General John Gore and Secretary Ross himself.

Because of the Supreme Court’s action last night, Ross’s deposition is off the table for now, but Gore’s can happen whenever the trial judge allows it.

There is, however, an important procedural subtlety. Yesterday, the Court was merely considering an application for a stay, which it granted as to Ross’s deposition but denied as to Gore’s. A stay delays proceedings until the Justices can consider the issues on the merits. It’s possible that when the Court does consider the merits through certiorari review, which will likely be in the next week or so, it will decide that Gore should not be forced to sit for a deposition either.

The Court’s unsigned order seemed to entertain that very possibility: “The denial of the stay with respect to the remaining orders does not preclude the applicants from making arguments with respect to those orders.” On the other hand, it’s also possible, if extremely unlikely, that the Court will allow both depositions to proceed in the near future.

Because of all this uncertainty, the plaintiffs will probably try to depose Gore as soon as Judge Furman will allow.

I want to make a potentially major point, one that I haven’t seen raised by legal commentators. Perhaps I am mistaken, but it seems that Judge Furman and the plaintiffs have pretty much staked the entire case on Ross’s testimony. In his order authorizing the deposition, Furman writes:

In short, it is indisputable — and in other (perhaps less guarded) moments, Defendants themselves have not disputed — that the intent and credibility of Secretary Ross himself are not merely relevant, but central, to Plaintiffs claims in this case. It nearly goes without saying that Plaintiffs cannot meaningfully probe or test, and the Court cannot meaningfully evaluate, Secretary Ross’s intent and credibility without granting Plaintiffs an opportunity to confront and cross-examine him.

So there you have it. Judge Furman believes that Ross’s credibility is “central” to the case, and cannot be “meaningfully evaluate[d]” unless the Secretary is deposed.

This cuts, or should cut, both ways. If Ross’s testimony is so crucial that Furman was prepared make him the first Cabinet member deposed in nearly 20 years, it follows that, without the deposition, the plaintiffs and judge have inadvertently conceded that the case is substantially weaker.

But don’t hold your breath waiting for a ruling in favor of the administration.

When he denied the Government’s motion to dismiss last July, Judge Furman noted that the plaintiffs “identify several statements made by President Trump himself in the months before and after Secretary Ross announced his decision that, while not pertaining directly to that decision, could be construed to reveal a general animus toward immigrants of color. ”

Citing Trump’s statements is the loudest of all judicial dog whistles. He’s already given away the play.


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Maybe I’m confused but what does being a citizen have to do with race or immigration. You are either a citizen or not, the way you became a citizen or the color of your skin does not seem, to me, to relevant in anyway!

    UnCivilServant in reply to Merlin01. | October 23, 2018 at 5:57 pm

    They’re worried that the illegals will vanish from the census, costing them house seats and electoral college votes in Blue Enclaves. It has jack to do with anything that can be legally asserted as a reason to not ask the question.

      alaskabob in reply to UnCivilServant. | October 23, 2018 at 6:25 pm

      Representation without the need for citizenship… illegals can have say in how citizens are governed…

        clintack in reply to alaskabob. | October 23, 2018 at 8:57 pm

        The Constitution has had representation without citizenship forever — does the number 3/5 call anything to mind?

        Just like the southern slaveholders got extra Congressional representation for their slaves, the modern “elite” want extra Congressional representation for their illegal nannies and gardeners.

        Milhouse in reply to alaskabob. | October 23, 2018 at 9:03 pm

        “Representation without the need for citizenship”, yes, absolutely. “Illegals can have say in how citizens are governed”, no, they can’t.

        Representation is based on the entire population, including those not eligible to vote. Children, aliens, felons, women before they could vote, everyone. This is not something new, it was not some oversight on the framers’ part, and it’s not something that can be changed without an amendment, which is never going to happen.

        That’s what the famous “three fifths” clause was about; the slave states wanted representation for their slaves, even though they weren’t going to let them vote, and the free states objected. The slave states said if we count women and children and aliens, why not slaves, and the free states said because you have them and we don’t. So they compromised on the slave states getting representation for 60% of their slaves instead of 100%.

          forksdad in reply to Milhouse. | October 24, 2018 at 9:08 am

          They are criminal invaders. They would have no more counted these illegals than they would have Indians living apart from society or the Japanese in Alaska or German pows in WWII. They create rotten Burroughs, miss count the electoral college and a vast sea of criminals in which they manufacture votes.

          Milhouse in reply to Milhouse. | October 24, 2018 at 8:06 pm

          forksdad, what you write is simply not true.

          Barry in reply to Milhouse. | October 24, 2018 at 11:54 pm

          ” it was not some oversight on the framers’ part”

          The framers did not think anyone would try to pretend that non citizens should count for apportionment.

          So, no, probably not an oversight. The framers just didn’t think we were all fools.

          Milhouse in reply to Milhouse. | October 25, 2018 at 12:56 am

          No, Barry, your comment displays incredible ignorance. This is a question of fact, not of opinion, so you’re not entitled to your own. The undisputed fact is that the framers deliberately intended for aliens to count for apportionment, and there was not even a suggestion that they shouldn’t, nor has there ever been a census in which they didn’t.

Why it’s almost as if the Democrats are trying to hide something??

The effect of an area having large numbers of people who are counted in the census but can’t vote, e.g. aliens, is that the votes of those who can vote count for more. The same effect is seen in areas around prisons; the prisoners are counted for the area’s representation, but they can’t vote, so the voters get a greater say.

Now D states, which have large alien populations (both legal and not) worry that if the census asks about citizenship some aliens will decide not to return it altogether, either out of fear or of ignorance, and they’ll lose those people’s representation. Which is a legitimate fear, but I say tough. It’s a legitimate question to ask, and if your aliens choose to hide from the census that’s just too bad for you.

BTW, since I live in a solid D area, I deliberately refuse to return the census forms, because I want to decrease my area’s representation, if only by one millionth of a seat.

It looks like there are splits within the “conservatives” on the Court, with Roberts leading the way.

    mathewsjw in reply to maxmillion. | October 24, 2018 at 12:13 am

    No splits as Scalia / Thomas now Gorsuch / Thomas are conservative
    Alito Right leaning Moderate

    Roberts always was Moderate the confirm is ACA ObamaCare Tax,

    Beyer Left leaning Moderate
    Ginsberg, Sotomayor, Kagan compete how Extremist Left

    This was a Ginsberg Stay Decision without listing giving some cover to the others means 5 votes were Ginsberg, Sotomayor, Kagan, Beyer
    and either Roberts or Kavanaugh..

    so it’s more likely Roberts as Kavanaugh was formerly an Executive Branch lawyer, HOWEVER Kavanaugh Just got Exposed as a Moderate of unknown leaning For Not Joining Dissent

    Chief Justice Roberts is referred to as “John Roberts the Traitor” for a reason.

    PersonofInterests in reply to maxmillion. | October 24, 2018 at 10:54 am

    To call Roberts a conservative after his legal contortions to find Obamacare “Constitutional”, is a stretch. We shall NEVER forget his, “It is not our job to protect the people from the consequences of their political choices.” That was his mea culpa for failing to perform his independent role in finding a “Non Tax Law” to be a “Tax Law” and the tyranny of Obamacare to be less troublesome than fighting Barack Obama and his Democrats; all of whom have about been purged for their having written that abomination.

    John Roberts was another Republican President mistake and one that saved George W. Bush from doing work to elevate a known conservative to the role of “Chief Justice” and another nomination/confirmation to fill that seat. Instead, he made one nomination to put a phony conservative directly into the seat previously held by Wm. Rehnquist.

    Perhaps it’s the legal training that finds a lawyer able and willing to argue either side of a murder case, especially from left leaning institutions like Harvard, that makes the identify of a conservative to choose, so difficult for Republican Presidents. Democrat Presidents, on the other hand, don’t seem to have the problem and I don’t know of one that has mistakenly picked a conservative judge. Given the energy to destroy Judge Kavenaugh, let’s hope President Trump has found a more successful tool in making his determinations than the Bush Boys, i.e., David Souter and John Roberts.

I would suggest that the citizens of this country have a right to know how many illegal aliens are within our borders and the census is a first step in clarifying this issue. And if illegals are afraid to be counted, so be it.

    Milhouse in reply to Sanddog. | October 24, 2018 at 1:15 am

    The citizenship question, even if everyone answers it and does so truthfully, will only tell us how many aliens there are, not how many of those are here illegally.

    And if it induces some aliens not to return the census then we won’t even get an accurate answer to that question.

    Still, there seems to be no valid reason why the question shouldn’t be asked. It would be useful to know how many citizens live here, if nothing else.

    Bisley in reply to Sanddog. | October 24, 2018 at 9:04 am

    A census is worthless for this purpose. Illegal aliens, if they were to answer at all, would most likely claim to be citizens. They have nothing to gain by admitting to being here illegally.

      stablesort in reply to Bisley. | October 24, 2018 at 12:00 pm

      Unless, of course, the law is enforced.

        There is no way to force people to answer census questions truthfully (or at all). They aren’t going to send a squad of federal agents to investigate every form, or everyone mentioned on it (and they couldn’t check out 1 in 10,000 if they tried).

“That’s what the famous ‘three fifths’ clause was about; the slave states wanted representation for their slaves, even though they weren’t going to let them vote, and the free states objected. The slave states said if we count women and children and aliens, why not slaves, and the free states said because you have them and we don’t.”

I don’t think it’s possible or anyone to get this more wrong, Milhouse. First of all there were no states; slave, free, or otherwise, prior to the ratification of the Constitution. That, in effect, was what the 3/5s compromise was intended to produce; states.

In fact there was a fundamental difference between pro-slavery and anti-slavery forces throughout the thirteen COLONIES. Everyone agreed that women, children, aliens, and free white men who didn’t meet the property requirements to vote were at least human. The slave owners insisted that slaves weren’t human. The abolitionists insisted that they were. The slave owners only wanted their slaves to count as human one day every ten years. The abolitionists countered that if they weren’t human in the slave owner’s eyes the other nine years and 364 days than it made no more sense to count them as human one day every ten years than to count other beasts of burden such as horses, mules, and oxen.

The abolitionists wanted the slave owners to be forced to admit that slaves were human beings every day of every year. Which would have demolished the slave-holders’ arguments that propped up the whole edifice of slavery. Despite how either side felt, however, everyone knew that if they couldn’t form a union the British could easily come back and recover their lost colonies piecemeal. Hence the 3/5s compromise.

    Milhouse in reply to Arminius. | October 24, 2018 at 8:05 pm

    I don’t think it’s possible or anyone to get this more wrong, Milhouse.

    Thank you for admitting that, Arminius. It’s mighty big of you. Though you could have saved yourself being wrong by simply not posting your comment.

    there were no states; slave, free, or otherwise, prior to the ratification of the Constitution.

    As you say, it’s impossible to be more wrong than that. Thirteen sovereign and independent states, not colonies, joined together in 1788 to form a union. Those states predate the union. The union is their creation. Remember, until the late 19th century “the United States of America” were always referred to in the plural; they were individual entities that were united, not one entity that divided itself for convenience into smaller administrative units.

    You’re also wrong in your main point. It is simply not true that “the slave owners insisted that slaves weren’t human”. This did not happen. No supporter of slavery ever made such a claim. The slave states explicitly agreed that slaves were “persons”; nobody ever tried to claim that “person” in Article 1 section 9, or in Article 4 section 2, did not include slaves.