A federal judge, out of patience with the Trump Administration’s 12 attempts to stop a trial of a constitutional dispute over the 2020 census, put government lawyers on notice on Tuesday that they are risking punishment for some of those tactics. U.S. District Judge Jesse M. Furman of New York City twice mentioned possible “sanctions” as he denied the latest request to prevent that trial from going forward to a decision.
In a seven-page opinion that, among other points, accused government lawyers of insulting his intelligence and of making a “laughable” argument, the judge said the case will keep moving forward even as the Supreme Court reviews a government appeal that could have an impact on the outcome of the case.
Judge Furman indicated that he expects to have a final ruling even before the Supreme Court reaches its decision on the part of the controversy that the Justices are reviewing. His final ruling, the judge said, could aid the Justices as they move toward their own decision after holding a hearing on February 19.
Undeterred by the judge’s new ruling, however, Administration lawyers promptly pressed the U.S. Court of Appeals for the Second Circuit Tuesday afternoon to put the trial on hold until after the Supreme Court reaches its ruling on what types of evidence Judge Furman may consider in deciding whether it would be legal or unconstitutional for the Census Bureau, during the 2020 tabulation of population, to ask everyone in America about their citizenship.
Unless the Second Circuit Court – or, possibly, the Supreme Court – stops the trial, both sides are due to file their final legal arguments tomorrow, and give their closing oral arguments next Tuesday. All evidence and testimony are now in; that part of the trial ended last Friday.
A group of state and local governments have argued in Judge Furman’s court that adding a citizenship question will result in a significant undercount of immigrants living in this country, whether legally or illegally, because of a fear that they may open themselves to deportation. The census must count everyone, whether their status in the country is legal or illegal, citizen or non-citizen.
The census count of state population totals determines the allotment of seats in the U.S. House of Representatives and directly affects the distribution of billions of dollars in federal funds.
The challenging governments contend that adding the citizenship question is unconstitutional, because – they argue – Commerce Secretary Wilbur Ross wanted to add that question out of biased hostility toward immigrants.
The only time the Supreme Court has intervened in the proceedings in Judge Furman’s court was a temporary order (still in effect) that barred the questioning under oath of Secretary Ross. The Court allowed all other parts of the trial to continue, and Judge Furman has done so.
The final decisions that would emerge from Judge Furman’s court and from the Supreme Court will differ in a fundamental way. The judge will be deciding the legal validity of adding the citizenship question to the census, while the only issue the Supreme Court will be deciding is what evidence the trial judge may take into account – just the government documents that bear on the decision to add the question, or all of the under-oath testimony given by government officials other than Secretary Ross, or both.
The question before the Supreme Court is potentially crucial, however, because the under-oath testimony gathered during the trial is stronger evidence in favor of the state and local governments’ challenge.
Judge Furman has made plans to consider the two types of evidence separately, in case the Supreme Court decides to bar the under-oath testimony by government officials. He would then modify his final ruling, if necessary.
The judge’s comment that the government’s lawyers had insulted his intelligence came in response to a suggestion in the government filings that the judge would not be able to ignore the type of evidence that the Supreme Court might rule that he should not have considered at all – that is, the testimony given under oath.