U.S. Department of Justice building in Washington, D.C. Photo: Diego M. Radzinschi /ALM

The Trump administration has formally asked the U.S. Supreme Court to intervene in a decision that allowed extra-record discovery into motivations behind adding a question about citizenship on the 2020 U.S. Census.

Attorneys for the U.S. Department of Justice wrote in the filing that the plaintiffs, a coalition of states and immigrant rights groups, got more credit than they deserved when they asked U.S. District Judge Jesse Furman to approve extra-record discovery.

Furman, of the Southern District of New York, approved their request, saying there was “strong” evidence the Trump administration acted in bad faith when deciding to ask about immigration status on the census because documents showed Commerce Secretary Wilbur Ross had already started considering the issue months before.

The Trump administration wrote in its filing to the Supreme Court that Furman’s reasons were not enough to show bad faith, and that the plaintiffs had not offered enough evidence to make the determination.

“It is inconsistent with the requirement that plaintiffs make a ‘strong showing’—not just an allegation that passes some minimum threshold of plausibility—before taking the extraordinary step of piercing the administrative record to examine a decisionmaker’s mental processes,” Main Justice wrote. “It is inconsistent with the presumption of regularity, which requires courts to presume that executive officers act in good faith.”

The Trump administration said Furman appeared to go out of his way to adopt the “most uncharitable reading possible” of the Commerce Department’s decision-making process on the citizenship question.

The plaintiffs in the case, led by New York Attorney General Barbara Underwood and the New York Immigration Coalition, have suggested that since Ross had already started thinking about the citizenship question during the early months of the Trump administration, he had already made up his mind on the issue without a formal review by his agency.

Ross admitted in a memo earlier this year that the Commerce Department had already started considering the citizenship question shortly after he was confirmed in February. He also asked a high-ranking official at his agency about the progress of adding the question about two months after his confirmation, emails obtained through discovery showed.

The Trump administration confirmed in its filing that the question was already on the table by the time the DOJ formally requested it be added in December. It argued that just because the request came months after Ross started talking about the question, that doesn’t mean he acted inappropriately.

As long as Ross agreed with the official reasons for adding the question on paper—that it would better help enforce the Voting Rights Act—any other motives are irrelevant, the DOJ argued.

“Allegations of mere pretext, therefore, are insufficient; for as long as the decisionmaker sincerely believes the stated grounds on which he ultimately bases his decision, and does not irreversibly prejudge the decision or act on a legally forbidden basis, neither initial inclinations nor additional subjective motives constitute bad faith or improper bias,” the DOJ wrote.

Instead, the plaintiffs should have made a strong showing that Ross acted without considering anything other than his own personal views, the Trump administration argued. On that point, there’s no evidence that Ross did not seriously consider arguments from the DOJ on the citizenship question, it said.

“There is no basis to conclude that this process was a sham or that Secretary Ross had an unalterably closed mind and could not or would not consider new evidence and arguments,” the DOJ wrote.

The Trump administration also argued against Furman’s decision to allow the plaintiffs to depose Ross in the lawsuit, saying there were other means to obtain the information, such as interrogatories. The plaintiffs have also already deposed several high-ranking officials at the Commerce Department to obtain information, the DOJ wrote.

The latter was actually why the plaintiffs asked to depose Ross. They had deposed Commerce Department Chief of Staff Wendy Teramoto and Earl Comstock, policy director and deputy chief of staff. Both, in some way, suggested that Ross was the only person with direct knowledge of every conversation surrounding the citizenship question.

That led Furman to approve the plaintiffs’ request to depose Ross. The DOJ argued that, again, the decision was made without enough consideration of other factors. That deposition is on hold until the Supreme Court decides on the DOJ’s petition to review Furman’s July decision.

“The district court asserted that Secretary Ross was ‘personally and directly involved’ in the decision to reinstate a citizenship question ‘to an unusual degree.’ Yet the court did not explain how Secretary Ross’s direct participation in the decision to reinstate a citizenship question was ‘unusual,’” the DOJ wrote. “It is not at all exceptional for an agency head to participate actively in an agency’s consideration of a significant policy decision—particularly one that concerns, as the court described it, one of the agency head’s ‘most important dut[ies].’ “

If the Supreme Court agrees to hear the petition and sides with the Trump administration, the plaintiffs in the case will not be allowed to use much of what they have obtained over the past four months, including the depositions of high-ranking officials and certain emails they claim show an improper motive from Ross on adding the citizenship question.

A spokeswoman for Underwood questioned the Trump administration’s rationale for asking the Supreme Court to reverse the decision on extra-record discovery.

“Given DOJ’s extensive and absurd attempts to block discovery and the entire case, you really have to wonder what they’re trying to hide,” said Amy Spitalnick, spokeswoman for Underwood.

Underwood is leading a coalition of 18 states in the lawsuit, which was consolidated with litigation from the NYIC for trial. The latter plaintiffs are represented by the New York Civil Liberties Union, the American Civil Liberties Union and Arnold & Porter.

The trial is scheduled for Nov. 5, though the Trump administration has now asked the Supreme Court to delay the start date until it’s finished reviewing its petition for a writ of mandamus.

Senior Trial Counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York. Kate Bailey is the lead attorney for the Trump administration.


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