Supreme Court Says Commerce Secretary Can’t Be Questioned in Census Lawsuit

October 23, 2018 Updated: October 23, 2018

The Supreme Court blocked a district court judge’s order that forced Commerce Secretary Wilbur Ross to testify in a lawsuit challenging a new question on the 2020 census, which asks people whether they are U.S. citizens.

The top court on Oct. 23 issued a stay of the order issued Sept. 21 by U.S. District Judge Jesse Furman in Manhattan. Ross is unlikely to testify as a result of the decision.

The justices gave the Justice Department (DOJ), which is representing the U.S. government, until Oct. 29, to appeal Furman’s other orders, which compel top DOJ official John Gore to face questioning by lawyers and force the government to hand over more documents.

The data from the census affects the distribution of congressional seats and government aid. Ross announced the addition of the citizenship question in March.

Every census from 1790 to 1950 asked the citizenship question. The Census Bureau already asks the citizenship question on several of its largest population surveys, which are used to estimate unemployment, poverty rates, wages, and health insurance coverage.

In issuing an order for Ross to appear for deposition, Furman has argued that Ross had acted in bad faith in adding the question, citing as evidence the fact that Ross was predisposed to add the question before assuming office, that the DOJ’s desire for a review stemmed from Ross’s comments, that Ross overruled his staff, and that he declined additional testing of the question.

Justice Neil Gorsuch, in an opinion on the order (pdf), said the evidence presented was insufficient. “Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification.”

“But 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.”

In March, the White House defended Ross’s decision to add the citizenship question, saying that having accurate data is important.

The lawsuit challenging the citizenship question argues that illegal aliens will fear participating in the survey, which would disproportionally affect the population counts in Democratic-leaning states.

Proponents of the question argue that aliens who are in the country illegally should not be counted to determine congressional districts and the distribution of federal aid.

The census case draws out the stance of Supreme Court justices on what Attorney General Jeff Sessions describes as judicial encroachment, a term he defines as an overreach by the courts “allowing unprecedented reviews of governmental operations.” Conservative Justices Neil Gorsuch and Clarence Thomas said they would have issued a complete stay.

Sessions cited the census lawsuit as an example of encroachment in a speech on Oct. 15. The attorney general said that the court wants to examine Ross’s motives, while the real issue before the court is if the census question “is either legal or illegal.”

“The words on the page don’t have a motive; they are either permitted or they are not,” Sessions said. “But the judge has decided to hold a trial over the inner-workings of a Cabinet Secretary’s mind.”

The U.S. Constitution mandates a census every 10 years. It is used in the allocation of seats in Congress, the drawing of political boundaries, and the distribution of billions of dollars in federal funds. A citizenship question has not appeared on the census form since 1950.

The lawsuit, spearheaded by state and local Democratic officials, was filed in April in federal court in New York. It is consolidated with another suit by several immigrant rights groups accusing the government of discrimination against non-white immigrants in violation of the Constitution’s guarantee of equal protection under the law.

The trial is scheduled for Nov. 5.

Reuters contributed to this report.

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