A federal judge in New York on Tuesday blocked the Justice Department from entirely replacing its legal team that had argued for the inclusion of a citizenship question on the 2020 Census before the U.S. Supreme Court.
District Judge Jesse Furman blocked nine DOJ lawyers from stepping down from the case, disrupting the Trump administration’s continued efforts to add the question to the census, despite being denied the ability to do so by the Supreme Court last month.
The Census Bureau began printing the 2020 questionnaires without the question last week. Commerce Secretary Wilbur Ross put out a statement confirming the decision.
Furman said Tuesday that the Justice Department’s request for its attorneys to step down was “patently deficient” and that officials needed to provide a better explanation as to why they were making the change. He noted that legal briefs arguing whether the judge should block the question were due later in the week.
“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” he wrote. “As this Court observed many months ago, this case has been litigated on the premise — based ‘in no small part’ on Defendants’ own ‘insist(ence)’ — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance.”
The Associated Press notes that two DOJ lawyers have already left the department or the civil division handling the case and are excluded from Furman’s decision. The judge ordered the remaining nine attorneys to make themselves available as the case continues through the lower courts.
The Justice Department must also file an affidavit assuring that any further counsel substitutions will not delay the case.
The decision is being hailed as a win by civil rights advocates, who note that adding the question would cause an undercount of 9 million people, according to Census Bureau estimates. Such an undercount would hurt black and Latinx communities who might not respond to the question over fears of immigration enforcement, impacting the 2021 redistricting process and affecting their representation in Congress and in state legislatures throughout the country.
“The administration is acting like it has something to hide,” the American Civil Liberties Union (ACLU) tweeted Tuesday evening, celebrating Furman’s decision. “We won’t rest until we know the truth.”
The Trump administration has been scrambling to come up with an explanation as to why it wanted to add the citizenship question in the first place, after the Supreme Court spiked the effort last month. The Court at that time called-out the administration for lying about its desire to add the question to better enforce the Voting Rights Act, and ruled that it needed better rationale.
Following that decision, Trump threw the case into a tailspin, tweeting that the inclusion of the “very simple and basic” question was “so important” and that officials were still “working very hard on this.”
Trump’s tweet ignited a flurry of confusion, with U.S. District Judge George Hazel, who is overseeing a similar suit in Maryland, calling an emergency phone hearing with DOJ attorneys. Hazel asked attorney Joshua Gardner to explain the administration’s plans, given that the Commerce Department had said one day earlier it was printing the census without the citizenship question.
“The tweet this morning was the first I had heard of the president’s position on the issue,” Gardner responded. “I do not have a deeper understanding of what that means at this juncture other than what the president has tweeted.”
Trump responded to Furman’s decision Tuesday night, blasting the judge as “Obama appointed.”
“So now the Obama appointed judge on the Census case (Are you a Citizen of the United States?) won’t let the Justice Department use the lawyers that it wants to use,” he tweeted. “Could this be a first?”
So now the Obama appointed judge on the Census case (Are you a Citizen of the United States?) won’t let the Justice Department use the lawyers that it wants to use. Could this be a first?
— Donald J. Trump (@realDonaldTrump) July 10, 2019
Trump has claimed he will try to add the citizenship question through executive order. This is likely an unviable option, as the responsibility for carrying out the decennial census rests on Congress, not the president.
If the Trump administration were to return to the Supreme Court with a new explanation as to why it needed to add the citizenship question, it would face a difficult re-printing deadline and would likely be forced to admit that the move was motivated mostly by racism.
Documents obtained by Common Cause from the late GOP gerrymandering mastermind Thomas Hofeller earlier this year revealed Hofeller had authored an unpublished study that stated adding such a question would favor Republicans and “non-Hispanic Whites.” A court filing submitted in June showed Hofeller had written the study after communicating with a Census Bureau official in 2015.
The administration told ThinkProgress in an email at the time that Hofeller had not influenced the government’s decision to add a citizenship question to the census.
“Neither Dr. Hofeller nor his views were part of the Secretary’s decision to reinstate the citizenship question on the 2020 Census,” a spokesperson wrote.