The Supreme Court late Friday afternoon sent the Trump Administration two quite clear signals that the government has been depending too much on the Supreme Court to thwart challenges to the government’s policies in the lower federal courts.
In two separate orders, each coming in a high-profile, heavily-contested case now unfolding in a lower federal court, the Court refused to take action itself to stop trials from even occurring before judges in New York City and Eugene, Ore.
While those two cases are in no way related on the issues they involve, the Justices’ action appeared to be a suggestion that the Administration needs to rely less on the Supreme Court to shut down lawsuits that government officials would rather not be in court at all.
In a case involving an important fight over whether the government will be allowed to ask Americans about their citizenship as part of the 2020 census, the Court on Friday cleared the way for that trial to open on Monday morning in the U.S. District Court in lower Manhattan, before Judge Jesse M. Furman. Three Justices noted in the order that they would have shut down the trial immediately; it would have taken five votes from the Justices to do that.
In a case involving a sweeping claim by 21 youths that a number of federal government agencies should be required to take major new policy steps to deal with global warming that may be causing severe changes in the world’s climate, the Justices – over two dissenting votes – shuttled the government’s challenge to that trial to the U.S. Court of Appeals for the Ninth Circuit. That particular order carried strong intimations that the government probably should be allowed some relief from that trial, which had been due to start last Monday before U.S. District Judge Ann L. Aiken in Eugene, but has been temporarily on hold until the Justices acted.
The Trump Administration has been much more active than other recent administrations in pursuing pre-trial appeals directly to the Supreme Court, when lower courts have frustrated its attempts to head off trials that government lawyers contend should not be allowed at all.
The more normal practice is for the Supreme Court to wait to get involved in a case until there are final decisions in the lower courts. The Administration, however, has repeatedly and often quite impatiently sought help directly from the Justices.
Indeed, it has told a lower appeals court that it will be attempting to do that again soon in the long-running controversy over the Administration’s attempt to close down an Obama-era program that has protected nearly 800,000 young, undocumented immigrants from being deported after having lived for years in the United States.
Government lawyers gave the Ninth Circuit Court a deadline of last Wednesday to act on the government’s appeal of a trial judge’s order allowing that so-called “DACA” program to continue. (DACA stands for Deferred Action for Childhood Arrivals, a program that has been operating for six years.) The Ninth Circuit Court did not act by that deadline, so the next move is up to the government.
The Justices’ actions on Friday in the census question and climate change cases did not settle anything about the legality of what the Administration has done or failed to do in either of those controversies, but did flatly rebuff the request of government lawyers for the Justices themselves to prevent the trials until the government can pursue appeals in the Supreme Court.
The order allowing the census case to go forward in Judge Furman’s court contained no explanation. Justices Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas dissented, saying they would have shut down that trial immediately. None of the other six Justices indicated how they had voted.
In the climate change case, however, the Court gave a quite full explanation of why it was refusing to interfere itself with that trial. It said the kind of trial-blocking order the government had sought – a “mandamus” to command Judge Aiken not to hold the trial – was something that the Administration could try again to get from the Ninth Circuit Court.
That Circuit Court has twice refused to order Judge Aiken to shut down that case, but the Supreme Court order said that the situation has changed in the meantime, and it was up to the government to make a new attempt, if it wished some relief, to try again at the Circuit Court level. That order expressed again, as the Court had done previously, the Justices’ open skepticism about the sweeping breadth of what the children and youths are seeking in Judge Aiken’s court. (Justices Gorsuch and Thomas dissented, noting that they would have ruled for the government now, to stop the case.)
As part of the new order on that case, the Justices did lift a previous temporary order that had prevented the Eugene trial from starting this week. Shortly after the Justices did so, lawyers for the young challengers in the case formally asked Judge Aiken to hold an immediate conference among all the lawyers involved to make plans to start the trial.
The government has the option – if it acted quickly at the Circuit Court level – to ask for a new order delaying the start of the trial. If the Circuit Court says no again, the Administration would then be free to renew the request with the Supreme Court.
While the Oregon case is a historic challenge to virtually everything the federal government has done, or failed to do, about global warming over the past several decades, the New York City challenge is focused directly on a single question that the Commerce Department wants to add to the questionnaires that will go to every household in the nation as part of the 2020 census. That question will seek answers from each household about the citizenship of everyone living there.
The every-ten-year census is supposed to count everyone in the country, including non-citizens such as undocumented immigrants who have no legal permission to be in the U.S. The actual count that results from the census is of fundamental importance, because it determines how many seats each state gets in the U.S. House of Representatives and also directly affects the flow of federal funds to state and local governments.
A group of state and local governments filed the New York City case, contending that adding the citizenship question was motivated by racial bias against those of Hispanic heritage, and that there will be a significant under-count because households that include undocumented immigrants will refuse to respond to the census for fear of deportation.
Friday’s order by the Justices did not deal with the Administration’s separate request to grant immediate review by the Court of the government appeal defending its power to ask the citizenship question. Commerce Secretary Wilbur Ross was instrumental in the decision to add that question, and the state and local governments contend that the public reasons he has given for doing so are a mere “pretext” to cover for the racial motive they say was actually behind the decision.