Breaking News

Federal government returns in census deposition dispute

The federal government returned to the Supreme Court tonight, asking the justices to intervene once again in a dispute over the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The government asked the court to block a trial in the case, which is currently scheduled for November 5, until the court can rule on the government’s petition seeking to limit the scope of the trial.

The challenge to the citizenship question was filed in New York by a group of states, cities and counties who argue that the question will discourage undocumented immigrants from responding to the census, leading to an inaccurate count. The Trump administration has countered that the question will help the Department of Justice better enforce federal voting rights laws.

As part of their case, the challengers asked to question Wilbur Ross, the Secretary of Commerce, and John Gore, the acting head of the Department of Justice’s civil rights division. At the beginning of October, Justice Ruth Bader Ginsburg put the depositions of Ross and Gore on hold, at the government’s request, until the challengers could respond; last week the justices put Ross’ deposition on hold but allowed the deposition of Gore to go ahead, along with other fact-finding outside the administrative record.

On October 26, the district court denied the government’s request to put the trial on hold, and the U.S. Court of Appeals for the 2nd Circuit let that ruling stand. Today the federal government came back to the Supreme Court, asking it to block the trial immediately and speed up consideration of the government’s petition. That petition asks the justices to stop Ross’ deposition once and for all; bar evidence (including Gore’s deposition) outside the record that the government has already turned over; and limit the district court’s consideration to the administrative record.

The government told the justices that the “most efficient path forward is to stay the trial and resolve the question whether the district court must confine the review of the Secretary’s decision to the administrative record, while leaving sufficient time for the district court to conduct its review followed by prompt appellate review.”

The government emphasized that, although going to trial would create an enormous amount of work for the government, it wasn’t coming to the Supreme Court “simply because it disagrees with a district court’s case-management decisions.” Instead, the government explained, the problem was that this trial “would unavoidably distract the government, including the Commerce Department, ‘from the energetic performance of its constitutional duties.’”

Recommended Citation: Amy Howe, Federal government returns in census deposition dispute, SCOTUSblog (Oct. 29, 2018, 6:38 PM),