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Challenge of Trump Census Change Put on Fast Track

"It is what it is," a federal judge told the Trump administration Wednesday, perhaps unintentionally echoing the president's latest coronavirus gaffe while advancing a suit over his changes to the census.

MANHATTAN (CN) — Late last month, President Trump made a pair of changes to the census in rapid succession, issuing a memo excluding undocumented immigrants from political apportionment and bumping up the deadline for in-person interviews. 

Those late-breaking changes led a federal judge Wednesday to fast-track the schedule of a lawsuit challenging the Trump administration’s new policy. 

“It is what it is,” U.S. District Judge Jesse Furman told attorneys for the government, perhaps unintentionally echoing the words Trump recently told an Axios reporter in describing the U.S. coronavirus death count

New York Attorney General Letitia James, leading a coalition of dozens of states, cities and counties, sued the Trump administration last month over a memo that would change how the U.S. government counted “persons” for the first time in more than a century and a half. 

“For 150 years — since the United States recognized the whole personhood of those formerly bound in slavery — the unambiguous requirement that all persons be counted for apportionment purposes, regardless of immigration status, has been respected by every executive official, every cabinet officer, and every president,” the 49-page complaint notes in its introduction. 

“Until now,” it continues. 

After that lawsuit was filed, the Trump administration sped up the deadline for completing in-person interviews of the census to Sept. 30, a month earlier than previously scheduled. 

New York state cited NPR’s reporting of that new deadline in calling for an expedited telephone conference this morning, which Judge Furman granted. 

The state’s attorney Matthew Colangelo argued at this morning’s hearing that Trump’s memo has been discouraging immigrant communities from participating in the census, even though the change does not bar them from the count, only political apportionment.  

Trump’s memo has confirmed some immigrants’ views that they “cannot trust the federal government,” Colangelo argued. 

Assistant U.S. Attorney Allison Rovner argued that the lawsuit was filed too late to make any difference. 

“The census is almost over,” she said. 

Skewering that argument as a bit “rich,” Judge Furman asked: “Isn’t that a problem of the president’s own making?"  

This is not the first time the Trump administration faced stiff resistance on the census in Furman’s court. 

Earlier in Trump’s term, Furman wrote a blistering ruling finding the attempt by the Commerce Department to have the survey include a citizenship question was illegal. The Supreme Court largely upheld that decision.  

Furman noted that there is a controversy over whether the fact record from the earlier case can be used in deciding the new lawsuit. 

There also may be a dispute over whether lawsuits challenging political apportionment to Congress requires a ruling by a three-judge panel rather than a single judge. 

Calling this a “close question,” attorneys for the New York Attorney General’s office and the American Civil Liberties Union indicated that they will argue that a three-judge panel is necessary.  

If convened, such a panel could add more gas to the case because their rulings can be instantly appealed under federal law to the Supreme Court. 

Assistant U.S. Attorney Rovner said she needed more time to decide whether the government wants the case to move forward before a trio of judges or Furman alone.

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