Supreme Court Blocks Commerce Secretary Questioning In Census Lawsuits, For Now

Oct 22, 2018
Originally published on October 26, 2018 6:26 pm

Updated 6:25 p.m. ET Friday

The Supreme Court has temporarily shielded Commerce Secretary Wilbur Ross from having to sit for questioning under oath in the lawsuits over a controversial citizenship question the Trump administration added to the 2020 census.

In a separate concurring opinion for Justice Clarence Thomas and himself, Justice Neal Gorsuch described a lower court's order allowing "a trial to probe the Secretary's mental processes" as "highly unusual, to say the least." Released on Monday, the court's order allows the administration to file additional requests for the high court to permanently block Ross' deposition.

In a written statement, Kelly Laco, a spokeswoman for the Justice Department, called the order "a win for protecting the rights of the Executive Branch." The agency is representing the Trump administration in these lawsuits.

"The intrusive and improper discovery in this case disrupts the orderly functioning of our government and is, as Justices Gorsuch and Thomas noted, 'highly unusual,' " she wrote. "The Department of Justice is committed to protecting the rule of law and looks forward to further proceedings before the Supreme Court."

The administration's request to temporarily block other lower court orders for the lawsuits, however, were not successful. The Supreme Court is allowing the plaintiffs' attorneys to question Justice Department official John Gore, who leads the department's civil rights division. The administration argues that division needs the citizenship question to better enforce the Voting Right Act. Document requests from the plaintiffs can also move forward as the start date for the first potential trial over the citizenship question draws closer.

In a written statement, Amy Spitalnick — a spokesperson for the New York state attorney general's office, representing the plaintiffs in one of the lead lawsuits — said the plaintiffs, "welcome the Court's decision to allow us to complete discovery in the case, with the exception only of Sec. Ross' deposition."

"We'll get to the bottom of how the decision to demand citizenship status was made, as we continue our case to ensure a full and fair Census," Spitalnick wrote in an email.

New York is among the dozens of states, cities and other groups that are suing to get the question Ross approved for the upcoming national head count removed. The question asks, "Is this person a citizen of the United States?"

The plaintiffs' attorneys are trying to prove that Ross misused his authority over the census by adding the hotly contested question. In his opinion from September that accompanied the lower court order allowing the questioning of Ross under oath, U.S. District Judge Jesse Furman wrote: "Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases."

Gorsuch, however, wrote in his separate opinion that the plaintiffs have not presented enough evidence of "bad faith" from Ross to justify an inquiry into his motives.

"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," Gorsuch wrote. He also indicated that the high court is "likely" to grant any additional requests from the administration for the court to permanently block Ross' deposition and other discovery requests that go beyond the record of emails, memos and other internal documents about the citizenship question that the administration has already released.

This latest development, after weeks of legal back-and-forth over the depositions of Ross and Gore, puts pressure on the plaintiffs' attorneys preparing for the first potential trial over the citizenship question. That trial is expected to start on Nov. 5 in the U.S. District Court for the Southern District of New York. The deadline for evidence gathering for the two lead lawsuits in New York passed earlier this month.

Gorsuch noted in his opinion that the trial in New York may have to be postponed if the Trump administration asks the Supreme Court to hear the case.

On Tuesday, the administration asked Furman to pause preparations for the trial until the Supreme Court resolves the petition the administration is planning to submit. Furman issued an order Friday denying that request, noting that delaying the start of the trial, "could make a timely final decision next to impossible."

Furman also pushed back against Gorsuch's and Thomas' conclusion that the plaintiffs have not made a sufficient case that Ross is acting in "bad faith."

"The Court found reason to believe that Secretary Ross had provided false explanations of his reasons for, and the genesis of, the citizenship question — in both his decision memorandum and in testimony under oath before Congress," Furman wrote.

In anticipation of Furman's ruling, the administration's attorneys filed a similar request on Thursday with the 2nd U.S. Circuit Court of Appeals to delay the trial. A three-judge panel of the appeals court denied that request on Friday.

The administration argues the Justice Department's civil rights division, currently led by Gore, needs the question on citizenship in the census in order to better enforce the Voting Rights Act protections against racial discrimination.

Census Bureau research, however, suggests using the census to ask every U.S. household about citizenship status in the current political climate could discourage noncitizens, including immigrants living in the U.S. illegally, from taking part in the head count. The Constitution requires the federal government to count every person living in the U.S. — regardless of citizenship status — once a decade.

Those numbers determine how many congressional seats and Electoral College votes are distributed among the states after the census. An undercount of households with noncitizens could shift political power, as well as portions of an estimated $800 billion a year in federal funds, away from states and local communities with high noncitizen populations and toward those with smaller ones.

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Breaking news this evening on the controversial citizenship question on the 2020 census - the Supreme Court is siding with the Trump administration to temporarily block the questioning of Commerce Secretary Wilbur Ross. More than two dozen states and cities are suing over Ross' decision to add the question which asks whether census takers are U.S. citizens.

NPR's Hansi Lo Wang has been covering this legal battle. He joins us now. Hansi, first just bring us up to speed about why a judge ordered Secretary Ross to testify in the first place and why the Supreme Court stepped in to block that order at least temporarily tonight.

HANSI LO WANG, BYLINE: Well, this is ultimately about trying to get at why Commerce Secretary Wilbur Ross approved adding a citizenship question to the 2020 census. And the Trump administration says the court should really rely on a record of internal emails, memos, other documents the administration has already released as part of these lawsuits.

But the plaintiffs here, these lawyers for these dozens of states, cities and other groups that have been suing the administration, say that really the court should consider beyond that record, that they should be allowed to question Wilbur Ross under oath before a trial to try to get additional evidence to prove their claim that Ross misused his authority over the census by adding this question and that this question was really politically motivated, that this was not about - as the administration says, about using the responses to better enforce the Voting Rights Act, that there could be other motives here and also that there have been inconsistencies between what these documents say and what - Ross' testimony to Congress about his rationale for this question.

So ultimately a district judge - federal judge in New York allowed the questioning of Ross under oath because the judge said Ross' credibility and intent are at issue. But the Supreme Court tonight has temporarily blocked Ross' deposition. And Justice Neil Gorsuch actually wrote, in his opinion, that probing Ross' mental processes in a trial is highly unusual. And the Supreme Court is now leaving room for the administration to make additional requests that could permanently block Secretary Ross' deposition and could also open up this case, you know, really bring it to - fully to the Supreme Court and have arguments before the Supreme Court. This is all depending on what the administration does next.

CORNISH: That's the administration, but where does this leave the dozens of states and cities that were suing over this question?

WANG: Well, the Supreme Court did allow the plaintiffs' attorneys to question one Trump administration official that they really wanted to question. This is John Gore, the acting head of the Justice Department's Civil Rights Division that the administration says needs this citizenship question to better enforce the Voting Rights Act's protections against racial discrimination.

And the Supreme Court is also allowing additional document requests for now, but basically the window is closing for the plaintiffs to gather additional evidence before the first potential trial of these lawsuits is set to start. That would be on November 5, the day before the midterm elections. And it will start here in New York. But if the administration asks the Supreme Court to take on this case, that really throws the timeline up in the air.

CORNISH: We've got about a minute left here, Hansi. Tell us the stakes. Why is getting an accurate census so important?

WANG: The census is really set - is really - what - the numbers that the government collects in 2020 - those numbers are going to reset the political map. They - these numbers are used to determine how many congressional seats and Electoral College votes each state gets. It's used to determine how approximately $800 billion a year in federal tax dollars - how that money is distributed around the country. So getting an accurate count is very, very important. And the plaintiffs here are arguing that if the citizenship question stays on, it risks noncitizens not participating, and it risks harming the accuracy of the information collected for the census.

CORNISH: That's NPR's Hansi Lo Wang. Thank you for your reporting.

WANG: You're welcome. Transcript provided by NPR, Copyright NPR.