Wednesday, July 03, 2019

Are We Having Fun Yet?

This presents a number of problems.

One:  there are two cases pending in federal District Courts.  The Supreme Court sent the case back down to the trial court in New York, with instructions to conduct further hearings on facts the Government might present to comply with the Court's ruling.  This phone conference was for the case pending in the court in Maylsnd, where the judge is considering a hearing on an equal protection challenge.

Two:  the matter of the deadlines.

On the one hand, it is true that the government was facing a daunting timeline. A Census official had testified at trial that extending the deadline to October under the current budget would "impair the Census Bureau's ability to timely administer the 2020 census" and that it would only be feasible with "exceptional resources."

On top of that, there were collateral legal actions set to occur over the summer in two lower courts that were sure to drag out. US District Court Judge Jesse M. Furman of the US District Court for the Southern District of New York was considering a sanctions motion against the government after a trove of documents surfaced from the files of a deceased redistricting expert raising the question of whether the decision was politically motivated. And Maryland Judge George J. Hazel of the US District Court for the District of Maryland, based on those same files, was set to order deposition and new discovery aimed at learning more about the government's rationale for adding the question.
But are there deadlines, besides the statutory one in 2020?

The discussions and confusion at the White House came a day after a Justice Department Attorney, Kate Bailey, notified plaintiffs challenging the question via email that she could "confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process."

The Department of Justice later confirmed the question would not be on the census. And Commerce Secretary Wilbur Ross issued a statement saying "The Census Bureau has started the process of printing the decennial questionnaires without the question" even though he said he disagreed with the Supreme Court ruling.

In addition, during a hearing Tuesday evening, a federal judge asked the Department whether the decision was "final" and the Department of Justice said that it was, according to plaintiff's lawyers participating in the call.

In the Maryland hearing, Judge George Hazel instructed the parties to put in writing by next week an agreement on how the census would move forward, according to the plaintiffs in the case, the Mexican American Legal Defense and Educational Fund.

On Wednesday, the ACLU, a plaintiff in one of the legal challenges, issued a new statement. "There's nothing fake about the Department of Justice writing us saying printing is starting without the citizenship question," ACLU lawyer Sarah Brannon said in a tweet.

After the President sent his tweet Wednesday, Hazel called for a previously unscheduled telephonic hearing in the ongoing case.

"The judge has on his own scheduled this hearing. We received no indication as to the reason. However, we are outraged at Trump's tweet," Maldef lawyer Denise Hulett said in a statement.

"The Census Bureau must immediately commit to counteract his statements with the truth -- that the citizenship question will not be on the Census, that that Census Bureau intends to carry out a full and complete count of every single person, and that they are committed to keeping all of the information they receive completely private as required by law," Hulett said.

The DOJ has represented to the courts, from trial court to Supreme Court, that June 30 was an absolute deadline.  Now they decide it isn't really that absolute, but another in the future could be.  The courts take extraordinary action, like taking a case from the trial court (as I understand was done with the New York case) without waiting for the appellate court, based on the representations of emergency by one of the parties.  If those representations suddenly become unreliable, if it appears the government itself doesn't know which way is up or who's in charge (witness the statements from the DOJ, Commerce Secretary Ross, and then Trump's tweets), those representations suddenly become untenable.  The DOJ has cried "wolf!" once; the courts are not going to be so interested in their crying "wolf!" again.  The burden of the deadlines is still on the Commerce Department; it is not on the courts.  In fact, it's been removed from the courts almost entirely.  I don't look to even the Supreme Court being anxious to give Trump's pet cause a rehearing before November.  Because so far, this is what DOJ is representing to the courts:


The Supremes sent the case back to the trial court for further hearings.  The trial court is in charge of its docket, and it must reach a new conclusion that the government can appeal.  Trump is not in control of that; neither is the DOJ.  And whether the Supreme Court will take it again, as it did before, is in question.  They certainly won't take it for hearing before October, and may not take it immediately (i.e., without an appellate court ruling) simply because of the problems with DOJ representations outlined above.  Reports from the Maryland courtroom, which stands apart from the remanded case, indicate the judge is not inclined to grant any wishes DOJ might have:

So the trial court is ready to proceed with more hearings, and examination of more evidence.  That's not what DOJ wants to do:
The only way to be "consistent with the Supreme Court's decisions" is to present new evidence for the rationale for the question.  But if the court takes evidence on the equal protection claim, that's a new ground to reject the question, and a far stronger one.

According to the transcript in that tweet, the DOJ wants to file a motion in the Supreme Court for instruction on remand, which they may or may not get (the Court has ended its term until October).  The court made its ruling following that proposal, as recorded in the transcript.  As the court's order indicates, the trial court is in charge of these proceedings; not the DOJ, and not the President.  The DOJ can't go back to the Supreme Court unless they have something they think will work and that they can get the Supremes to direct the trial court to follow.  But again, they can't pull that out of the air, they'll have to have evidence to support it.  In the meantime, the Maryland court wants to hear evidence on conspiracy and discrimination questions, which haven't been considered by the Supreme Court because they haven't been considered by the trial court.  Which means any appeal to the Supreme Court will have to be on the Maryland case, or it's all for naught.  And we're back to that deadline issue, and how interested the courts are in those, again.

So, will the Commerce Department put the entire census at risk by pushing back the statute mandated date for beginning the census?  Or will they come up with the "exceptional resources" and start printing the forms in November?  And will there be a case for the courts to hear by that time, because only the Supreme Court can overrule its prior ruling.  That can't happen until the court holds hearings on whatever evidence the government may present.  And the evidence that may be presented, may indicate racial animus, which is unconstitutional, and doesn't advance the government's cause one whit, but instead removes the APA question and replaces it with an equal protection question.

The first thing the Maryland court is likely to do is to move forward on a motion for sanctions against the government, which will involve hearings on the "trove of documents" and receiving evidence from those documents to support a sanctions motion.  The court certainly wants to hear evidence on new allegations, which is not good for the rapid appeal DOJ wants to give Trump.  After the lawyers represented to the court that the issue was settled, and then represented today that, no, there are other grounds for going forward, the court is not going to be inclined to give the government the benefit of the doubt on these questions.  Nor is the court obligated to hear these issues on the government's schedule.  And any appeal by the government to force the trial court to move fast enough for the government to get the Supremes to hear the case before Halloween, will only slow things down further.

The Supreme Court cannot hear evidence like a trial court.  It can only review the record from the trial court, and rule on matters of law, like whether evidence of racial animus invokes the equal protection clause of the 14th Amendment.

So what we have here is Trump playing "chicken" with the Census, one of the primary constitutional duties of the federal government, and one foundational to the function of our representative government.

Are we having fun yet?  Let me add here a bit of "color commentary" on how the judge was feeling in that hearing today.  First, to underline how serious these changes in position are:

And then to underline that the DOJ was not having a good day in court:

And how this all started:  Trump thought he could just sign an executive order:
This is not helping the DOJ's case at all.  And with various departments of the government making various statements on matters before the court, some of those statements being made to the court, the urgency the DOJ may feel won't be felt by the courts at all.  Which makes Trump our man on their side.  Again.
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