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The action is a partial victory for the Trump administration that argued such a deposition of a cabinet official is “rarely, if ever justified.” The court did, however, allow the deposition of a top Department of Justice official in the case, acting Assistant Attorney General John M. Gore of the Civil Rights Division, as well as other discovery to proceed at least for now.
Justices Neil Gorsuch and Clarence Thomas wrote to say they would have also blocked the deposition of Gore as well as related discovery.
Blocking the Ross deposition is a partial loss for a coalition of states and the ACLU, who are going to trial on November 5 and sought the deposition to bolster their argument that adding the question is unlawful and unconstitutional.
It took five justices to grant the government’s request. There was no recorded vote attached to Monday night’s unsigned order.
A panel of judges on the 2nd Circuit Court of Appeals had upheld a district court order allowing the depositions to go forward. That opinion was temporarily put on hold by Justice Ruth Bader Ginsburg while the justices considered the case.
In papers filed with the court, Solicitor General Noel Francisco told the justices the lower courts were wrong to allow the depositions to proceed.
“The balance of harms weighs strongly in favor of an immediate stay,” Francisco wrote, as he sought to block the effect of the lower court order. He noted that the challengers intended to depose Ross, as well as acting Assistant Attorney General John M. Gore of the Justice Department’s Civil Rights Division.
“Absent a stay, these high-level Executive Branch officials will be forced to prepare for and attend these depositions, and those harms cannot be undone by an eventual victory on the merits,” Francisco wrote.
When announcing his decision to reinstate the question last March, Ross said the Department of Justice had requested the change in order to provide data to determine whether there were violations of the Voting Rights Act. Not since 1950 has the census asked respondents whether they are US citizens.
“The decennial census is mandated in the Constitution and its data are relied on for a myriad of important government decisions, including apportionment of Congressional seats among states, enforcement of voting rights laws, and allocation of federal funds,” Ross wrote in a memo on March 26, 2018.
Challengers, led by New York’s attorney general and groups such as the ACLU, charge that the Trump administration’s real reason for adding the question was to reduce the representation of immigrant populations.
They said the question would harm the response rate for noncitizens who may be too afraid to come forward. In court papers they wrote that “the addition of the citizenship question is a naked act of intentional discrimination directed at immigrant communities of color that is intended to punish their presence, avoid their recognition, stunt their growing political power, and deprive them and the communities in which they live of economic benefits.”
Attorney General Jeff Sessions weighed in on the case Monday night, criticizing the lower court decision during a speech at the conservative Heritage Foundation.
“But the census question — which has appeared in one form or another on the census for over a hundred years — is either legal or illegal. The words on the page don’t have a motive; they are either permitted or they are not,” Sessions said. “But the judge has decided to hold a trial over the inner workings of a cabinet secretary’s mind.”
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