Judge Jesse Furman U.S. District Judge Jesse Furman. Photo: Rick Kopstein

A federal judge on Tuesday denied the latest attempt by the Trump administration to delay an outcome in the trial over the legality of a question about citizenship being added to the 2020 U.S. Census.

U.S. District Judge Jesse Furman of the Southern District of New York called the administration’s motion to halt the litigation while the U.S. Supreme Court considers a prior decision on discovery in the case its “latest and strangest effort” to stay proceedings.

“Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether,” Furman wrote.

He ended the seven-page decision with a simple message to the Trump administration, which has tried a dozen times to delay the litigation in recent months: “Enough is enough.”

A spokeswoman for New York Attorney General Barbara Underwood, who is leading the lawsuit, echoed Furman’s remarks in a statement on Tuesday.

“We agree with Judge Furman: enough is enough,” said Amy Spitalnick, spokeswoman for Underwood.

The Trump administration was asking Furman to hold off on a decision in the case while the Supreme Court reviews a ruling he made in July that allowed evidence outside the administrative record to be used in the litigation. The extra-record discovery was requested by the plaintiffs, a coalition of states and immigrants’ rights groups.

Attorneys for the U.S. Department of Justice appeared to anticipate the denial earlier this week when they asked the U.S. Court of Appeals for the Second Circuit for a stay of proceedings before Furman had made a decision.

The Second Circuit denied that motion as well on Tuesday, saying it was premature since Furman had not yet made a ruling. The Trump administration may now refile the motion to delay proceedings with the appellate court, which is likely since it already tried earlier this week. Spokespeople for the U.S. Department of Commerce and the DOJ did not immediately respond to a request for comment on Tuesday.

The Trump administration had argued in its motion to delay a ruling in the trial that waiting for the Supreme Court to decide on the scope of discovery could save everyone some time because then neither party may have to go through an appeals process and only one set of evidence would have to be considered by Furman in his ruling. Furman has said that he plans to evaluate the evidence in the administrative record and the extra-record evidence separately in his decision.

Furman rejected that argument from the Trump administration, coming down hard against the claim that postponing a decision in the case would make things easier for litigators and the courts in the long run.

“It is plainly more efficient for this court to rule expeditiously, while the evidence from trial (the vast majority of which pertains to standing and which defendants concede may be considered no matter what the Supreme Court decides) is fresh,” Furman wrote. “It is also more efficient for this court to create a comprehensive record that would enable a single round of higher-court review than to tee up a second round of review with almost no time remaining on the clock.

“And beyond that, if defendants were truly interested in conserving judicial resources, they could have avoided burdening this court, the Second Circuit, and the Supreme Court with 12 stay applications over the last 11 weeks that, with one narrow exception, have been repeatedly rejected as meritless,” Furman continued.

He also wrote that the Trump administration, at this point in the litigation, could not show that it would suffer irreparable harm by him issuing a decision in the case. Until the Supreme Court makes a ruling next year, Furman wrote, there’s little the administration will have to do that would constitute such injury.

“In fact, the words ‘harm’ and ‘injury’ do not appear anywhere in their motion. That is for good reason, as the notion that they—or anyone else—would suffer ‘irreparable harm’ without a stay is laughable,” Furman wrote. “The only ‘harm’ defendants suffer from denial of a stay is that they would be required to complete and file their post-trial submissions (which are due tomorrow and, presumably, almost done), and to appear for oral argument on Nov. 27, 2018.”

Underwood is leading a coalition of 18 state attorneys general in the lawsuit, which was consolidated for trial with litigation on the same issue from the New York Immigration Coalition. The NYIC is represented by the New York Civil Liberties Union, the American Civil Liberties Union, and Arnold & Porter.

They claimed that asking about immigration status on the next census will depress participation in states with large immigrant populations, like New York. That could decrease the number of representatives in Congress and the Electoral College for those states. It could also lead to lower amounts of federal funding in areas like education and health care.

Furman is expected to make a decision in the case anytime after oral arguments in Manhattan next week. The trial record closed last week.

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.


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