DOJ Asks SCOTUS To Delay Next Week’s Census Citizenship Trial

WASHINGTON, DC - JUNE 18:  U.S. Secretary of Commerce Wilbur Ross attends a meeting of the National Space Council at the East Room of the White House June 18, 2018 in Washington, DC. President Donald Trump signed an executive order to establish the Space Force, an independent and co-equal military branch, as the sixth branch of the U.S. armed forces.  (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - JUNE 18: U.S. Secretary of Commerce Wilbur Ross attends a meeting of the National Space Council at the East Room of the White House June 18, 2018 in Washington, DC. President Donald Trump signed an ... WASHINGTON, DC - JUNE 18: U.S. Secretary of Commerce Wilbur Ross attends a meeting of the National Space Council at the East Room of the White House June 18, 2018 in Washington, DC. President Donald Trump signed an executive order to establish the Space Force, an independent and co-equal military branch, as the sixth branch of the U.S. armed forces. (Photo by Alex Wong/Getty Images) MORE LESS
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October 29, 2018 5:43 pm
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The Trump administration asked the Supreme Court to delay a trial scheduled to start next week in New York over its move to add a citizenship question to the 2020 Census.

The request comes after the Supreme Court earlier this month temporarily halted plans to depose Commerce Secretary Wilbur Ross, while letting a deposition of a top Justice Department official, as well as additional discovery in the case, go forward.

The Justice Department is now asking the Supreme Curt to delay the trial so it can “resolve the question whether the district court must confine its review of the Secretary’s to the administrative record.”

In addition to the request for the trial delay, the Justice Department filed its petition that it consider whether a  “a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker.”

That petition argues that the challengers in the case had failed to show that Ross acted in bad faith in adding the question, referencing the “narrow exception” the Supreme Court has recognized “to the general rule prohibiting discovery beyond the administrative record.”

A district judge, in ordering the Ross deposition, had said he had made met the bad faith standard — a finding the Justice Department is arguing was made in error. U.S. District Judge Jesse Furman found that it was likely that the ostensible reason the administration gave for adding the question — for enforcement of the Voting Rights Act — was a pretext, and has noted that Ross overruled career Census staff that had raised concerns about how the question risked making the survey less accurate.

“Allegations of mere pretext,” the Justice Department argued Monday, “are insufficient; for as long as the decisionmaker sincerely believes the stated grounds on which he ultimately bases his decision, and does not irreversibly prejudge the decision or act on a legally forbidden basis, neither initial inclinations nor additional subjective motives constitute bad faith or improper bias.”

The Justice Department’s petition also addressed what Furman has described as “false statements” Ross likely made to Congress about adding the question, claiming that the judge was taking those “admittedly imprecise” comments out of context.

“Only by ignoring the context of these statements and eliding the presumption of regularity could the district court find that the Secretary ‘provided false explanations,'” the Justice Department said. “Besides, even if the Secretary inaccurately suggested that DOJ initiated the informal request, it does not in any way establish that the Secretary disbelieved that adding a citizenship question would be useful in VRA enforcement, or that he acted on a legally forbidden basis in adding the question.”

Read the delay request below:

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