Constitution Daily

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Two judges ponder new orders in census controversy

July 6, 2019 by Lyle Denniston


With government lawyers under pressure from President Trump looking for a new way to justify asking everyone in America about their citizenship next year, federal judges in two cities moved rapidly on Friday to consider issuing new orders to stop that addition to 2020 census forms.

The hectic pace of recent days over this constitutional controversy continued, but now the dispute appears to be developing toward a climactic, direct conflict between the President and the federal courts. The potential of drawing the Supreme Court back into the midst of the tense dispute seems considerably more likely.

Here, in brief, is what happened on Friday:

First, President Trump escalated the feud further by suggesting a new reason for asking about citizenship, indicating that he remained firmly committed to the plan his administration has been pursuing since early in his time in office despite a legal setback last week in the Supreme Court.

Speaking to reporters at the White House, he tied the plan directly to the post-2020 process of reshaping congressional districts. Depending upon how the data about the locations of non-citizens would be used, the impact could be favorable to the Republicans and harmful for the Democrats. His critics during the court battles over the census have contended that the pursuit of a GOP advantage has been a major goal of the plan.

Second, a federal judge in Maryland opened a two-month review of an even more scathing claim against the inclusion of a citizenship question: that the real motive for it was to discriminate on the basis of race, by intimidating Hispanics and non-citizens and thus discouraging them from responding to the census and thus denying them representation that is based on a complete count of all of the nation’s population.

That unfolding process in the court of U.S. District Judge George J. Hazel of Greenbelt, MD, could result – probably by mid-September – in a new order against including the citizenship question because of the racial bias issue. 

Third, a federal judge in New York City ordered a rapidly-unfolding schedule for considering a new plea by challengers to the citizenship question to block that question on the theory that administration lawyers repeatedly misled the courts (including the Supreme Court) in order to give the plan an advantage in the court battles.

In the new order, U.S. District Judge Jesse M. Furman of New York City gave the administration one week to answer that plea and scheduled a hearing for July 23.

It was an earlier ruling by Judge Furman against the inclusion of the question on the census that led to the Supreme Court decision last week. Splitting 5-to-4, the Court ruled that administration officials had used a “contrived” rationale for asking about citizenship, and ordered them to make a new review. That reason was a claim that citizenship data was needed for enforcement of federal voting rights laws, but the Court said that was only a “distraction” to enable the administration to go forward with its plan.

The new plea by the challengers was for one or two different orders from Judge Furman; if he issued either one, it would be a direct challenge to President Trump’s efforts to compel government officials to find a way to put the question back on the census forms. (Because of last week’s Supreme Court ruling, the Census Bureau has begun the process of printing the forms without the citizenship question.)

The challengers asked the judge to amend his earlier order against the question so that it made clear that the administration had surrendered any authority it had to now include that inquiry because of the way the government’s lawyers had handled the controversy in the courts or to issue a fresh order to ban the question and to ban any steps toward including the question in the months ahead. 

The center of the challengers’ new grievance was that, repeatedly over the past year as the controversy unfolded before several courts, administration lawyers pushed the cases along at “breakneck speed” with the argument that the Census Bureau had to know by June 30 – five days ago – what it was going to be putting on the census forms.

The new filing had page after page of quotations from administration lawyers’ court papers insisting firmly on the hard deadline of June 30. Those arguments, the document said, caused such a rapid process in Judge Furman’s court that the challengers were not able to make their arguments, and caused the Supreme Court to rush the case before the Justices in order to gain an Administration advantage there, too.

But, the filing said, the supposed deadline of June 30 came and went as a result of the Supreme Court decision, and now the administration was stretching out – under orders from President Trump—its consideration of a new way to justify asking the question.

“In addition to deceiving the judiciary and the public and putting the success of the 2020 census in jeopardy,” the challengers contended, the government’s “efforts to prolong uncertainty and drag out this matter are sowing confusion and exacerbating fear among immigrant communities, and directly injuring [our organizations’] efforts to mobilize participation in the census.”

By insisting so often and fervently that June 30 was the deadline that everyone had to meet, the new filing asserted, the administration has forfeited any opportunity now to add the question to the census forms.

The challengers’ document also aimed directly at President Trump, arguing that the administration’s tactics in court had “come in the course of a series of high-profile anti-Latino immigrant initiatives, including threatening mass deportation of ‘millions of illegal aliens’ and promotion of inhumane conditions in detention camps.”

A Twitter message by the President on Tuesday night was quoted directly: “If illegal immigrants are unhappy with the conditions in the quickly built or refitted detention centers, just tell them not to come. All problems solved!”

For now, the Supreme Court is on the sidelines as the heavy controversy goes forward in the wake of its June 27 decision. Neither the Maryland judge nor the New York judge was waiting for the Justices to get involved again. Both appear to have the authority to do so, at least on the kinds of actions that they are now considering.

The administration has talked of returning to the Supreme Court for further guidance, but apparently only if it comes up with a new reason that it would hope would justify the question.


Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.


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