Ginsburg Presses Pause on Census Deposition Orders

MANHATTAN (CN) – Justice Ruth Bader Ginsburg late Tuesday paused the Second Circuit’s approval of the deposition of Commerce Secretary Wilbur Ross over the addition of a citizenship question to the 2020 census.

Commerce Secretary Wilbur Ross, testifies before a House Committee on Science, Space, and Technology Space Subcommittee and House Armed Services Committee Strategic Forces Subcommittee joint hearing on Capitol Hill in Washington on June 22, 2018. Ross says he is selling off all his vast stock holdings after news reports raised questions about the timing of some of his stock transactions and he received a sharp reprimand from the chief federal ethics officer. (AP Photo/Manuel Balce Ceneta)

Ginsburg’s reprieve came hours after the Second Circuit found that the deposition of Commerce Secretary Wilbur Ross was appropriate in light of evidence that he acted in bad faith.

Though Ginsburg granted the stay for which U.S. Solicitor General Noel Francisco later that afternoon, the relief is in place only until 4 p.m. Thursday so that the challengers can respond. Friday is the discovery deadline in the case.

In addition to the September order compelling Secretary Ross to testify, Ginsburg stayed a July ruling that highlighted the “strong showing of a claim of bad faith,” and an August order that compelled the deposition of Assistant Attorney General John Gore at the Justice Department. The Second Circuit had upheld the latter order on Sept. 25.

In his application for a stay, Solicitor General Francisco cited precedent that “an agency decisionmaker’s mental processes are generally irrelevant to evaluating the legality of agency action.”

“So too has this court recognized that compelling the testimony of a high-ranking government official – especially a member of the president’s cabinet – is rarely if ever justified,” the 43-page application continued.

The order for Ross to face deposition came in New York where 18 states have brought a lawsuit alleging that he added the citizenship question to the census for political and discriminatory reasons.

Ross told the House Ways and Means Committee in March that he added the question at the Department of Justice’s request to enforce the Voting Rights Act. Since that time, however, new evidence has contradicted that assertion.

In September 2017, several months before he testified at the House, Ross received a memo from his deputy Earl Comstock telling him the Justice Department wanted him to leave the census alone.

“I spoke several times with James McHenry by phone, and after considering the matter further James said that Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Comey matter),” the memo states.

New York Attorney General Barbara Underwood, who is leading a coalition of 18 states and several civil rights group in challenging the change, said that anti-immigration hardliners like Kansas Secretary of State Kris Kobach and ex-White House advisor Steve Bannon have pressured the Commerce Department to politicize the survey.

Internal testing from the Commerce Department has shown that asking about citizenship will discourage participation by immigrants of color, who largely live in metropolitan areas that traditionally vote Democratic. The resulting undercounts could diminish political power and federal funding for blue states for the next 10 years.

Politico noted that, given the current composition of the court, Justice Brett Kavanaugh could cast a deciding vote in keeping a Trump administration cabinet member off the hot seat. Such a decision would be particularly contentious amid criticism over Kavanaugh’s partisan tirade during the congressional testimony that led up to his confirmation.

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