January 15, 2019 / 11:43 PM / 4 months ago

Time is short but here's how Supreme Court could have last word on 2020 census

(Reuters) - The U.S. Commerce Department cannot ask respondents to the 2020 census if they are U.S. citizens, according to an epic 277-page ruling Tuesday by U.S. District Judge Jesse Furman of Manhattan. Judge Furman concluded that the U.S. Commerce Department and Secretary Wilbur Ross violated the Administrative Procedure Act in myriad ways when they overrode staff recommendations and decided to add the question to census forms.

Judge Furman vacated Secretary Ross’ decision to ask about citizenship and enjoined the government from adding the question without meeting the strict standards of the APA – an impossibility, given that the Trump administration has said census forms must be finalized by this June.

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Crucially, Judge Furman – a notably meticulous and scholarly judge – based his conclusions on the administrative record produced by the Commerce Department. As you probably remember, Furman ordered the government last summer to produce evidence beyond that administrative record after concluding that plaintiffs challenging the citizenship question had adequately alleged bad faith decisionmaking by the Trump administration. The orders to provide extra-record discovery sparked a titanic war between Furman and the Justice Department, which repeatedly turned to higher courts to block the trial judge’s ruling.

Ultimately, the U.S. Supreme Court stayed a scheduled deposition of Commerce Secretary Ross and agreed in November to review Judge Furman’s discovery orders to determine if he abused his authority by calling for evidence beyond the administrative record. The Justice Department submitted its merits brief in December. Census challengers – dozens of states, municipalities and civil rights groups – are scheduled to file their response brief on Thursday.

Judge Furman’s ruling makes the pending Supreme Court case an interesting academic exercise - but not a vehicle to determine if the Trump administration can include a citizenship question on the 2020 census. The case before the Supreme Court is all about Judge Furman’s authority to order evidence beyond the administrative record. Furman’s vacatur and injunction are grounded in the administrative record.

So now what happens? As time runs out on the Supreme Court’s current term, how can the Justice Department assure that the last word on the 2020 census is not Judge Furman’s injunction?

I should say up front that I asked this question of the Justice Department’s spokespeople and they declined to answer, pointing me instead to DOJ’s statement that it is “disappointed” in Furman’s ruling and believes Secretary Ross had a reasonable basis for his decision to include a citizenship question. John Freedman of Arnold & Porter, who represents the New York Immigration Coalition and is one of the two counsel of record for citizenship question challengers in the current Supreme Court case, said only that his side is reviewing its options.

But I gamed out options for the Trump administration and the challengers with Joshua Matz, a onetime clerk for Supreme Court Justice Anthony Kennedy and publisher of the Take Care blog. Matz, who is of counsel at both Gupta Wessler and Kaplan Hecker & Fink, has been following the 2020 census litigation closely as counsel to a group of administrative law scholars who plan to submit an amicus brief backing the states and civil rights groups.

The first likely development, he said, will be a Supreme Court filing within the next couple of days by the states and civil rights groups - fashioned either as a statement of mootness or a motion to dismiss the pending case as improvidently granted - arguing that the case should be tossed now that Judge Furman has entered a final decision. The pending case admittedly addresses the important question of how much deference courts owe to executive branch decision-makers, Matz said. But the case is styled as a mandamus petition and the Supreme Court doesn’t typically entertain mandamus cases once a final, appealable decision has been entered.

DOJ may contest that the case is moot, but it wouldn’t make sense for the Justice Department to push on with the current appeal, Matz said, because DOJ couldn’t attain its ultimate goal of restoring the citizenship question to census forms even if it persuaded the court that Judge Furman improperly allowed extra-record discovery. That discovery wasn’t the basis of the judge’s holding that Ross and the Commerce Department violated the APA.

Can the justices on their own initiative convert the current case into a review of the merits of Judge Furman’s ruling and order the parties to brief their positions? That would be extraordinarily unusual, Matz said.

It’s more likely that the Justice Department will maneuver to bring Judge Furman’s ruling to the Supreme Court in time to obtain a decision on its merits before the justices recess in June – the same month the census questionnaire goes to print.

DOJ, Matz said, can ask the Supreme Court to consider a merits appeal before the 2nd U.S. Circuit Court of Appeals reviews Judge Furman’s decision - a route that Solicitor General Noel Francisco has taken in high-profile litigation over the Trump administration’s ban on transgender troops and rescission of DACA protection for so-called Dreamers. The justices are running out of time to take new cases – Reuters Supreme Court reporter Lawrence Hurley has said Friday’s conference is probably the last one in which the court will grant review of cases to be heard before the end of the term – but the census case could sneak in under the wire.

The Justice Department could also seek a stay of Judge Furman’s vacatur and injunction. Presumably, the judge and the 2nd Circuit would deny a stay. (The 2nd Circuit has had Judge Furman’s back throughout this case, repeatedly refusing to second-guess Furman’s orders or to stay the case.) An appeal of stay denials would also put the census case before the Supreme Court – and in the truncated form of stay litigation, where there’s no oral argument and limited briefing.

Of course, in the unusual circumstances of the census litigation, a ruling before June on a stay motion would effectively be a merits ruling. Either the citizenship question ends up in printed forms for the 2020 census or it doesn’t.

Would the Supreme Court prefer to hear the census case as a full-blown review of the merits of Judge Furman’s decision or a less robust consideration of a DOJ stay motion? Matz was reluctant to hazard a guess, though he said DOJ will probably pursue both possible roads to the Supreme Court.

It’s going to be very interesting to see how census challengers respond. You might assume they will oppose DOJ attempts to get the merits case before the justices. After all, when DOJ first asked the Supreme Court to stay some extra-record discovery, including Secretary Ross’ deposition, Justices Neil Gorsuch, Clarence Thomas and Samuel Alito sided with DOJ. Justice Gorsuch even wrote an unusual dissenting opinion, joined by Justice Thomas, in which he cast doubt on the basis of Judge Furman’s determination of bad faith. “There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Justice Gorsuch wrote. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”

On the other hand, the census plaintiffs may be confident that Judge Furman’s ruling will hold up if the Supreme Court dives into its merits. Remember, a majority of the court refused to stay most of the extra-record discovery Judge Furman ordered when the case was still developing. Now there’s a full record for the Supreme Court to review, in the form of 277 pages of fact-finding and legal analysis that’s entitled to deference from the high court. And, as I’ve mentioned, the judge grounded his conclusions in the administrative record.

As of 5 p.m. on Tuesday, the Supreme Court docket in the previously-granted census case was quiet. I have a strong suspicion that’s the calm before a storm.

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