Trump administration moves to escalate census lawsuits to Supreme Court

A police officer stands on the steps of the U.S. Supreme Court in Washington, D.C. (Education Images/UIG via Getty Images)

A police officer stands on the steps of the U.S. Supreme Court in Washington, D.C. (Education Images/UIG via Getty Images)

The Trump administration is taking steps to move the legal fight over its controversial plan to add a question about citizenship status to the 2020 census to the U.S. Supreme Court.

According to a court filing submitted Friday, attorneys at the Justice Department — which is representing the administration in the six lawsuits around the country over the hotly contested question — are preparing to appeal recent orders by lower courts for the depositions of two key Trump administration officials behind the question: Commerce Secretary Wilbur Ross, and Justice Department official John Gore.

Lawyers for the plaintiffs in the two lead cases have been gearing up to question Ross and Gore in their final weeks of evidence gathering. A potential trial for the two New York cases is set to start on Nov. 5 at the U.S. District Court for the Southern District of New York.

But in the administration’s request to U.S. District Judge Jesse Furman, its lawyers asked to block all remaining depositions and document requests for those two cases “pending review” by the Supreme Court.

Read the Sept. 28, 2018 Letter Motion to Stay Discovery Pending Supreme Court Review here.

The Trump administration is challenging Furman’s order allowing the plaintiffs’ attorneys to question Ross, who oversees the Census Bureau as the head of the Commerce Department. Ross announced in March that he approved the Justice Department’s request to add a citizenship question to forms for the upcoming national head count. On Friday, a judge on the 2nd U.S. Circuit Court of Appeals put his deposition on hold while the appeals court reviews the administration’s request to block it.

Earlier this week, a three-judge panel of the 2nd Circuit upheld Furman’s order for the deposition of Gore. He leads the Justice Department’s civil rights division, which argues that it needs responses to the citizenship question in order to better enforce the Voting Rights Act’s protections against discrimination of racial and language minorities.

The plaintiffs, which include dozens of states, cities and other groups that want the question removed, claim that Ross misused his authority and discriminated against immigrant communities of color by ordering the 2020 census to inquire about U.S. citizenship status — a topic the Census Bureau has not asked all U.S. households since 1950.

Critics of the question point to Census Bureau research suggesting that asking about citizenship status could discourage households with noncitizens, including unauthorized immigrants, from participating in the once-a-decade head count of every person living in the U.S. as required under the Constitution.

The Trump administration argues that deposing Ross and Gore is not necessary to resolve these lawsuits, and that the courts should instead rely on the record of internal memos, emails and other documents already released by the administration.

“The validity of the Secretary’s decision is properly judged on that objective record, without inquiry into Secretary Ross’s deliberative process and any subjective reasons he might have had for favoring the reinstatement of a citizenship question,” the Justice Department attorneys wrote in their request for the 2nd Circuit to block Ross’ deposition.

But Judge Furman has ruled, in part, that the officials should be deposed because of documents suggesting that better enforcement of the Voting Rights Act was not the main driver behind the push for a citizenship question.

“Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases,” Furman wrote in an opinion filed last week.

As NPR has reported, an internal email exchange released as part of the lawsuits provided an early indication that the Trump administration was preparing to defend the citizenship question at the Supreme Court months before the Justice Department formally submitted its request for the question in December 2017.

“Since this issue will go to the Supreme Court,” Commerce Department official Earl Comstock wrote to Ross in an August 2017 email discussing a citizenship question, “we need to be diligent in preparing the administrative record.”

Ross later wrote back: “we should be very careful,about everything,whether or not it is likely to end up in the SC.”

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