U.S. District Judge Jesse Furman U.S. District Judge Jesse Furman. Photo: Diego M. Radzinschi/ALM

U.S. Department of Commerce Secretary Wilbur Ross must be deposed over his decision-making process behind including a question about immigration status on the 2020 census, a federal judge in Manhattan ordered Friday.

U.S. District Judge Jesse Furman of the Southern District of New York, citing circuit precedent, said the question of whether Ross must sit for questioning “was not a close one.”

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

The deposition was sought by New York Attorney General Barbara Underwood’s office earlier in September as part of an effort to uncover the department’s decision-making process for adding a question about respondents’ immigration status on the upcoming decennial census.

In the suit, New York and 17 other states argue that asking about citizenship will decrease turnout for the census in states with large immigrant populations, such as New York. That could have a ripple effect by causing those states to lose representatives in Congress and the Electoral College. The attorneys general also argued that a smaller recorded population could mean less federal funding in such areas as education and health care.

In ordering Ross to be interviewed, Furman said that the U.S. Court of Appeals for the Second Circuit identified two exceptional circumstances justifying the deposition of high-ranking government officials: unique firsthand knowledge about the claims being litigated, and the inability for the information to be gleaned through better means.

Under these standards, compelling Ross to testify was appropriate, the court found. Ross clearly had the sort of knowledge about the reasoning behind the decision to include the immigration question. Under the Administrative Procedure Act, agency decision makers are required to disclose the basis for their actions, a requirement, Furman noted, “that would be for naught if the agency could conceal the actual basis for its decision.”

“If that evidence establishes that the stated reason for Secretary Ross’s decision was not the real one, a reasonable factfinder may be able to infer from that and other evidence that he was,” in fact, trying to cover up a discriminatory purpose, Furman wrote.

It would be impossible to find out what the intent was behind the inclusion of the question through alternative means, Furman found. It wasn’t merely the case that Ross was the decision maker. It was because “Secretary Ross was personally and directly involved in the decision, and the unusual process leading to it, to an unusual degree,” Furman said.

Ross himself acknowledged considering the move shortly after his appointment in early 2017. As early as May of that year the secretary had “manifested an unusually strong personal interest in the matter,” according to Furman, going so far as to lobby U.S. Attorney General Jeff Sessions to submit a request for inclusion of the question, which Ross later relied on to justify doing just that, Furman wrote.

“In short, it is indisputable — and in other (perhaps less guarded) moments, Defendants themselves have not disputed — that the intent and credibility of Secretary Ross himself are not merely relevant, but central, to Plaintiffs claims in this case,” the court ruled. “It nearly goes without saying that Plaintiffs cannot meaningfully probe or test, and the Court cannot meaningfully evaluate, Secretary Ross’s intent and credibility without granting Plaintiffs an opportunity to confront and cross-examine him.”

In an email, New York attorney general spokeswoman Amy Spitalnick said the office was looking forward to “getting to the bottom of this as we continue our suit to ensure a full and fair Census.”

“As we argued, Secretary Ross has unique, first-hand knowledge of why the Trump administration decided to break with decades of policy and demand citizenship status on the 2020 Census,” she said. “Secretary Ross testified to Congress that DOJ initiated the request for the citizenship question because of Voting Rights Act concerns; yet documents show otherwise, instead reflecting Secretary Ross’ concern for reducing representation of communities with large immigrant populations.”

Commerce Department representative declined to comment on the ruling.


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