If the U.S. Supreme Court issues a decision in Department of Commerce v. New York, the challenge to the Trump administration’s decision to include a question about citizenship on the 2020 Census, it should be considered a gross act of legal malpractice — and pure partisan politics.
The court has been kept apprised of recent developments in the trial court, with lawyers for the challengers notifying the justices about new developments outside of the Supreme Court. The only procedurally correct, and fair and just thing to do at this point, is to remand the case back to the trial court for further proceedings.
Today, in a separate case, the Fourth Circuit Court of Appeals remanded La Union Del Pueblo Entero, et al v. Wilbur Ross, et al., back to the trial court in Maryland for further proceedings on the Fifth Amendment equal protection claim and the 42 U.S.C. Sec. 1985 claim in light of the new Hofeller evidence to determine whether it shows the government acted with racially discriminatory intent in including the citizenship question on the census.
This question was not briefed before the U.S. Supreme Court. The Maryland trial court’s further proceedings procedurally would first return to the Fourth Circuit Court of Appeals for review.
The Trump “Injustice” Department is trying to derail this possibility. Tierney Sneed at Talking Points Memo reports, Appeals Court Shakes Up Census Citizenship Case Days Before SCOTUS Decision:
The development throws another wrench into what was already going to be dramatic and high-stakes decision from the Supreme Court in the days to come about whether the citizenship question can stay on the census. The high court is currently considering [Department of Commerce v. New York] that raised different legal issues about Commerce Secretary Wilbur Ross’ decision to add the question and it is not clear what will happen procedurally if a federal judge were decide it was discriminatory after the justices hand down their ruling.
The judge in Maryland, U.S. District Judge George Hazel, initially did not find that the question had violated the Constitution’s equal protection clause in a ruling that struck it down for other reasons.
After the challengers put forward new evidence from the files of a deceased GOP consultant apparently involved in the administration’s move, Hazel sought to have the case sent back to him from the 4th US Circuit Court of Appeals, where the case had been appealed.
The appeals court granted that request in an order Tuesday.
The Justice Department opposed the move to send the case back to Hazel and made a last minute push to ask the Supreme Court to address the equal protection claim in the ruling it hands down, likely by the end of the week. In a letter to the Supreme Court filed Tuesday just before the appeals court order, the Justice Department said the new allegations from the challengers were “based on a speculative conspiracy theory that is unsupported by the evidence and legally irrelevant to demonstrating that Secretary Ross acted with a discriminatory intent.”
The DOJ cannot claim it is “unsupported by the evidence” when there has been no factual determination at a trial court level of the new Hofeller evidence or the equal protection claim. This is merely conclusory argument. The U.S. Supreme Court is not a fact finder but a court of appeals. It should not rule on a matter for which there is no trial court record on appeal before the court that is determinative of the facts and law. For the Court to grant the Trump “Injustice” Department’s request would be the arbitrary exercise and abuse of power of a Star Chamber court.
[T]he evidence suggests that Hofeller had partisan, discriminatory reasons for advocating for the question and then helped craft the bogus rationale use to cover up those reasons, the legal challengers to the question say.
Hazel said in an order last week that the evidence raised a “substantial issue” that warranted him reconsidering his ruling on the equal protection claim.
Two appeals court judges, both Clinton appointees, of a three-judge panel agreed on Tuesday. (The third judge was an appointee of George W. Bush). One of the Clinton appointees, Judge James Wynn, wrote a concurrence that provided Hazel a road map for considering whether the Trump administration had a discriminatory intent. Wynn, quoting the relevant case law, said that “invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.”
“To that end, even in the absence of direct evidence of invidious discriminatory intent, this Court and other courts have found such intent when, for example, a governmental decisionmaker was aware that an action was likely to disproportionately impact a minority group, the decisionmaker declined to impose ameliorative measures to minimize the likely disproportionate impact, the decisionmaker’s process for deciding to take the action deviated from standard practice, and the decisionmaker provided pretextual reasons for taking the action.”
Ross disregarded Census Bureau studies that showed that the citizenship question would discourage immigrant communities from responding to the census and that there were more accurate, less costly ways of obtaining the Voting Rights Act data. Hazel and two other federal judges have ruled that Ross’ process for adding the question violated administrative law and that his reasons for doing so were pretextual.
Wynn’s concurrence also addressed the time sensitivities of the proceeding. The administration has claimed that it needs to send the census forms to the printers by July 1, though one Census official testified that the forms could be finalized as late as October.
Wynn suggested Hazel consider blocking the citizenship question immediately with a preliminary injunction so as to prevent the printing of the forms, which, from at least “the Government’s perspective,” would render “the case moot.”
In other words, the Trump administration would have run out of time for the issue to be decided timely enough for the citizenship question to be included on the 2020 Census, should the court rule in its favor. It’s game over.
We’ll soon find out exactly what kind of Supreme Court that we have in the next 48 hours. Stay tuned.
UPDATE: House Oversight recommends contempt charge against Barr and Ross over citizenship question on census:
In a morning press release, Democratic Chairman of the House Committee on Oversight and Reform Elijah Cummings announced that the committee has filed a bipartisan report recommending that both Attorney General William Barr and Commerce Secretary Wilbur Ross be held in contempt of Congress. The contempt recommendation comes after both Barr and Ross refused to speak to Congress about the reason that a question on citizenship was added to the 2020 census form, and after other witnesses were blocked from discussing the issue.
Included with the recommendation is a transcript of the committee’s interview with former Ross adviser James Uthmeier. The transcript shows that officials at the Department of Commerce blocked Uthmeier from replying almost one hundred times. He didn’t answer questions about the advice he gave on the citizenship question. He wouldn’t answer when asked whom he had spoken to about the idea. He wouldn’t talk about a secret memo he wrote on the topic and hand-delivered to the Justice Department.
[The] testimony appears to completely undercut claims from the Commerce Department. It shows that the citizenship question was part of a scheme cooked up even before Trump took office, based on advice from “Republican gerrymandering expert Thomas Hofeller,” who instructed Trump officials on how adding this question “would be advantageous to Republicans and non-Hispanic whites.”