A New York district court ruling barring the Trump administration from including a citizenship question on the 2020 census complicates the U.S. Supreme Court’s next steps in a case that already faces a tight deadline.
In November, the Supreme Court agreed to hear a technical issue stemming from the Trump administration’s strenuous objection to a ruling requiring Commerce Secretary Wilbur Ross to appear for a deposition over his true reasons for adding the question to the upcoming census.
The high court agreed to consider whether federal courts can consider information outside of the formal “administrative record” when considering challenges to the addition of the question.
But a Jan. 15 ruling by District Court Judge Jesse Furman said the administration loses regardless of whether the extra record information is considered. Furman barred the administration from including the new census question.
The administration announced in March 2018 that it was adding the citizenship question to the upcoming census, despite protests that the move was aimed at lowering minority responses rates.
That could not only lower representation in Congress in states with higher minority populations, but it could also limit that amount those states get of the more than $675 billion in federal funds doled out under the census.
Still, the Supreme Court has reasons to keep the argument on its calendar, and it may soon address the broader statutory issue itself, court observers told Bloomberg Law.
The Jan 15 decision probably doesn’t formally moot the argument the justices are set to hear in mid-February, constitutional law professor Stephen I. Vladeck told Bloomberg Law.
But it does change the stakes of that argument, he said.
The fact that Furman “didn’t rely on any of that evidence in his decision means that any ruling by the Justices would not have much of an impact,” Vladeck said.
All this is made more complicated by the fact that the census litigation is operating under a tight deadline.
The litigation—not just the evidentiary issue—must be finalized by June when the 2020 questionnaire needs to be set in order to ensure that it is printed in time.
Additionally, both the Justice Department, which is litigating the case, and the Commerce Department, which is responsible for carrying out the census, are affected by the partial government shutdown over funding for President Donald Trump’s border wall.
Leapfrog Lower Courts?
Given that tight deadline, law professor and Supreme Court veteran Douglas Laycock said that the solicitor general is likely to appeal Furman’s order, and it may ask the Supreme Court to bypass the court of appeals.
That may allow the justices to hear the case before it recesses in June, though the court would have to expedite briefing to do so.
Solicitor General Noel Francisco has already asked the high court to leapfrog the lower federal courts of appeals on issues relating to the Deferred Action for Childhood Arrivals program and the administration’s ban on transgender military service. The court is currently considering those requests.
But the Justice Department told reporters Jan. 15 that it’s too early to say what its next steps are.
DOJ is “still reviewing the ruling,” agency spokeswoman Kelly Laco said.
SCOTUS Intervention Needed?
The circumstances are similar to those involving the challenge to the administration’s travel ban, David H. Gans said. His organization, the Constitutional Accountability Center, has been involved in the census litigation.
The Supreme Court initially agreed to hear that dispute in the fall of 2017. But intervening circumstances—namely, that the administration revised the ban to address constitutional concerns—overcame the issue the justices agreed to take up, Gans said.
The justices tossed the case, but later considered a revised version of the ban. The court upheld that version in a 5-4 decision.
Constitutional law professor John C. Harrison said the evidentiary issue in the census case could still be important.
Although Furman didn’t rely on the evidence that’s in dispute, the Second Circuit on appeal might do so, Harrison, a professor at the University of Virginia School of Law said.
“The court of appeals might conclude that the administrative record evidence by itself doesn’t support the district court’s conclusion but that the additional evidence does or might,” he said.
That same reasoning would apply if the solicitor general goes straight to the Supreme Court, rather than the Second Circuit.
Gans said he wouldn’t be surprised if the Supreme Court asks the parties to advise on how the court should proceed.
The justices are scheduled to issue orders and possibly opinions on Jan. 22 and won’t sit again until Feb. 19, when the census argument is scheduled.
The justices could, however, issue an order at any time directing the parties to file additional briefs, taking the Feb. 19 case off the calendar, or take additional steps.
If neither the Supreme Court nor the Second Circuit steps in on the merits soon, however, it seems unlikely that the administration will be allowed to include the question on the 2020 census under Furman’s latest ruling.
The case is Dep’t of Commerce v. U.S. Dist. Court for the S. Dist. of N.Y., U.S., No. 18-557, argument scheduled 2/19/19.
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