The Trump administration has asked a federal judge to halt proceedings—including any ruling—in a lawsuit over a decision to ask all U.S. residents about their citizenship status on the 2020 census, while the U.S. Supreme Court considers a decision on extra-record discovery from the district court.
Special Counsel Joshua Gardner from the U.S. Department of Justice wrote in the motion that U.S. District Judge Jesse Furman should hold off on a decision for several months until the Supreme Court decides which evidence should be considered in the litigation by the court.
Hours later, the Trump administration appeared to leapfrog the district court and file the same motion to stay proceedings with the Second Circuit U.S. Court of Appeals. Furman is not expected to decide on the motion at the district court level until Tuesday at the earliest.
The Supreme Court Friday agreed to hear arguments in February on a decision from Furman in July that allowed the plaintiffs, a coalition of states and immigrants’ rights groups, to seek discovery outside the administrative record. That’s typically not allowed in cases involving the Administrative Procedure Act, but Furman said at the time there was “strong” evidence the Trump administration acted in bad faith when deciding to ask about immigration status on the next census.
If the Supreme Court reverses Furman’s decision, Gardner wrote, it would change the entire scope of the lawsuit, which just concluded trial last week.
“The Supreme Court’s forthcoming ruling will affect the scope of this Court’s review, including whether extra-record evidence is admissible or instead review must take place on the administrative record,” Gardner wrote. “The most prudent course would be to await a determination from the Supreme Court because the Supreme Court may order this Court to exclude extra-record evidence from its consideration”
It’s not the first time the Trump administration has tried to stop the lawsuit from going forward. Lawyers with the DOJ previously asked Furman to delay the trial after the Supreme Court allowed them to stay the deposition of Commerce Secretary Wilbur Ross as part of discovery in October. Both Furman and the Supreme Court allowed the trial to go forward despite the request.
The trial was a consolidation of two lawsuits on the same issue—one from New York Attorney General Barbara Underwood and the other from the New York Immigration Coalition. Underwood led a coalition of 18 state attorneys general in the original litigation, which was brought in April. The NYIC is represented by the American Civil Liberties Union, the New York Civil Liberties Union and Arnold & Porter.
A spokeswoman for Underwood said they are not phased by the Trump administration’s latest request to delay an outcome in the litigation.
“DOJ has tried and failed 11 times to block our case in some way. This is now attempt No. 12,” said Amy Spitalnick, spokeswoman for Underwood. “The trial record closed on Friday, and we are confident in the strength of our case. The record clearly shows that the Secretary’s decision to demand citizenship status on the 2020 census is illegal.”
If Furman’s ruling on the Trump administration’s previous request for a delay is any indication, it’s unlikely he will grant the current motion. He argued in his decision on the other motion to halt proceedings that the DOJ could always go back and appeal his decision after the Supreme Court rules on the discovery issue.
“Defendants remain free to argue at trial that the Court should disregard all evidence outside the administrative record and, if unsuccessful, can argue on appeal that the Court erred in considering extra-record evidence,” Furman wrote at the time. “It follows that, if the Court rules against Defendants on the basis of extra-record materials and a higher court holds that the Court should not have considered those materials, Defendants would be able to get complete relief.”
Gardner acknowledged in his filing that appealing Furman’s decision would be an option but argued that waiting for the Supreme Court’s decision would save more time in the long run.
“A stay in this Court, however, would ensure that the final judgment in this Court is, indeed, final and not subject to a remand by the Second Circuit when the Supreme Court issues its ruling on the mandamus petition, thereby facilitating more expeditious appellate proceedings,” Gardner wrote.
He also argued that putting the litigation on hold would allow Furman to—eventually—only consider one set of evidence in his decision. Furman has ordered the plaintiffs and the Trump administration to differentiate in their posttrial briefings between arguments based solely on the administrative record and those that consider extra-record evidence. He expects to do the same in his decision, he wrote.
Gardner wrote that holding off on a ruling would be less confusing and save everyone some time.
“Nevertheless, the complex task of disregarding all the extra-record evidence when making findings based solely on the administrative record will be made much more difficult if the post-trial process involves this Court making alternative findings based specifically on the extra-record evidence that will require this Court to focus directly on that evidence,” Gardner wrote.
Post-trial briefs in the case are due this week with a round of closing oral arguments scheduled for next week. Furman’s ruling could come anytime after, which would be months before the Supreme Court is scheduled to hear arguments on the discovery issue in February 2019.
That would impose a time crunch on the process to prepare the next census. The Commerce Department, which oversees the U.S. Census Bureau, has said in previous filings that the government intends to start printing the physical census questionnaire by next May. It’s unclear if a Supreme Court decision would come before then.
Plaintiffs have argued that asking about citizenship on the census may depress participation in states with high immigrant populations, like New York. That could lead to fewer representatives in Congress and the Electoral College in those states. It could also mean less federal funding in areas like education and health care.
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 in the matter.