Off the Kuff Rotating Header Image

Commerce Department

Third Census lawsuit ruling against Trump administration

Once, twice, three times an injunction.

A federal judge in Maryland ruled Friday against the government’s addition of a citizenship question to the 2020 Census, The Washington Post reported Friday.

Judge George J. Hazel found that in deciding last year to add the question, the government violated administrative law, according to The Post. The ruling will probably be appealed to the U.S. Supreme Court, as is expected with two similar cases.

The case has Texas connections. Lawyers representing the Mexican American Legislative Caucus, the Senate Hispanic Caucus, and several Texas-based nonprofits that advocate for Latino and Asian residents have appeared before Hazel to make arguments in the case.

The plaintiffs have challenged the inclusion of the citizenship question on several fronts, alleging that it violates the U.S. Constitution’s Equal Protection Clause, the Enumeration Clause and a federal law that governs federal agencies and their decision-making processes.

The Post reported that in his ruling, Hazel wrote, “The unreasonableness of Defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public.”

See here and here for the previous rulings, and here for more on this case. All three rulings focused on statutory issues, with constitutional issues either not being part of the case (as with the first lawsuit) or not getting the same favorable treatment. That may bode well for the forthcoming appeal to SCOTUS, as the questions are much more narrowly defined. Here’s hoping. Daily Kos has more.

A second win for plaintiffs in Census citizenship question lawsuit

It’s all up to SCOTUS now.

Commerce Secretary Wilbur Ross acted in “bad faith,” broke several laws and violated the constitutional underpinning of representative democracy when he added a citizenship question to the 2020 Census, a federal judge ruled Wednesday.

In finding a breach of the Constitution’s enumeration clause, which requires a census every 10 years to determine each state’s representation in Congress, the 126-page ruling by U.S. District Judge Richard Seeborg in San Francisco went further than a similar decision on Jan. 15 by Judge Jesse Furman in New York.

The Supreme Court has already agreed to review Furman’s narrower decision, with arguments set for April 23, but may now need to expand its inquiry to constitutional dimensions.

[…]

Unable to find any expert in the Census Bureau who approved of his plan to add the citizenship question, Seeborg wrote, Ross engaged in a “cynical search to find some reason, any reason” to justify the decision.

He was fully aware that the question would produce a census undercount, particularly among Latinos, the judge said.

That would have probably reduced the representation in Congress — and thus in the electoral college that decides the presidency — of states with significant immigrant populations, notably California.

Because census data is used to apportion distribution of federal funds, an undercount would also have cheated these same jurisdictions, the judge said.

Seeborg, like Furman, found after a trial that Ross misrepresented both to the public and Congress his reasons for adding the citizenship question last March. Ross claimed he was acting at the request of the Justice Department in the interest of enforcing the Voting Rights Act.

In reality, the “evidence establishes” that the voting rights explanation was just “a pretext” and that Ross “acted in bad faith” when he claimed otherwise.

See here for the background. A copy of the ruling is embedded in this Mother Jones story. I don’t have much to add to this other than it’s a big honking deal and would have a negative effect on Texas just as it would on states like New York and California that filed the lawsuits against it. You wouldn’t know that from the words and actions of our state leaders, though. USA Today and NPR have more.

MALDEF Census lawsuit in court

Census lawsuit #2.

In a federal courtroom in Maryland on Tuesday, lawyers representing the Mexican American Legislative Caucus, the Senate Hispanic Caucus and several Texas-based nonprofits that advocate for Latino and Asian residents will set out to convince U.S. District Judge George Hazel that the federal government’s decision to ask about citizenship status as part of the upcoming census is improper, because it will lead to a disproportionate undercount of immigrants and people of color.

The Texas legal battle has run mostly parallel to several other court fights across the country — and might not be decided before the New York case makes it to the U.S. Supreme Court — but it’s the only census case that could ultimately determine whether Trump administration officials conspired to deprive people of color of equal protection and representation.

[…]

What we’re referring to as the “Texas case” is actually two consolidated cases filed in Maryland — one of which was filed on behalf of more than a dozen plaintiffs, including Texas’ legislative Latino caucuses; legislative caucuses out of Maryland, Arizona and California; and several community organizations. La Unión del Pueblo Entero, a nonprofit organization based in the Rio Grande Valley, is the lead plaintiff.

Those plaintiffs are challenging the inclusion of the citizenship question on several fronts, alleging it violates the U.S. Constitution’s Equal Protection Clause, the Enumeration Clause and a federal law that governs federal agencies and their decision-making processes.

More broadly, they argue the citizenship question will lead to a disproportionate undercount of Hispanic and immigrant households, affecting areas of the country like Texas that are more likely to be home to members of those communities, and that officials’ decision to add the question was unconstitutional because it was based on intentional racial discrimination. They go further than other opponents in also alleging that Trump administration officials conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting immigrants for the apportionment of political districts.

The federal government, which has been unsuccessful in its repeated requests to dismiss the case, has argued the question is necessary for “more effective enforcement” of the federal Voting Rights Act and was added at the Justice Department’s request. But evidence that emerged through litigation indicated U.S. Commerce Secretary Wilbur Ross asked the Justice Department to make that request after he was in touch with advisers to President Donald Trump.

[…]

In the New York case, U.S. District Judge Jesse Furman scolded the Trump administration for “egregious” violations of the Administrative Procedure Act, the federal law the Texas plaintiffs are also citing, and described Ross’ decision to add the question as “arbitrary and capricious.” Furman, however, ruled there wasn’t enough evidence to prove that Ross had intentionally acted to discriminate against immigrants and people of color.

The Texas case is moving forward despite the New York ruling because it involves allegations that the courts haven’t addressed. The New York lawsuit — filed on behalf of a coalition of more than 30 states, cities and counties, including El Paso, Hidalgo and Cameron — didn’t include some of the legal claims opponents in Texas are leaning on.

See here and here for background on this lawsuit. The New York case was ruled entirely on statutory grounds, with the Constitutional claims put aside in part because there had been no deposition of Commerce Secretary Wilbur Ross. A ruling for the plaintiffs on the Constitutional claims would be a stronger and more expansive ruling, but given the SCOTUS that we have, it seems like a ruling we are less likely to get. You never know till you try, though.

And speaking of that New York case:

The Trump administration asked the Supreme Court on Tuesday to bypass its normal procedures and decide quickly whether a question on citizenship can be placed on the 2020 Census.

[…]

Normally, the Justice Department would appeal the decision to the U.S. Court of Appeals for the 2nd Circuit. But Solicitor General Noel J. Francisco said that would not leave enough time for a final ruling from the Supreme Court.

“The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time,” he told the court. “It is exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this Court by that deadline.”

Citing a Supreme Court rule, Francisco said the “case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

As this story notes, SCOTUS had a hearing to address the question of whether Secretary Ross could be deposed – they declined to allow it while the trial was happening – but since the New York court went ahead and made a ruling anyway, they have since canceled that hearing. I don’t know if they will take up the request for an expedited appeal, but it won’t surprise me if they do. (Rick Hasen, an actual expert in these matters, thinks they will.) That ruling was designed to stick to things this SCOTUS likes to uphold and away from things it likes to bat down, so who knows what they’ll do. NPR has more.

Plaintiffs win in Census citizenship question lawsuit

Very good news.

A federal judge on Tuesday blocked the Trump administration’s plan to add a citizenship question to the 2020 census, with an opinion that found the move by Commerce Secretary Wilbur Ross violated the Administrative Procedure Act.

Furman’s decision, if not overturned by a higher court, is a monumental victory for voting rights activists and immigrant advocates, who feared the question would spook immigrant participation in the census. An undercount of those populations would shift political representation and governmental resources away from those communities, in favor of less diverse, less urban parts of the country. Furthermore, there were strong hints that the citizenship data procured would then be used to exclude non-citizenships from redistricting — a long-sought goal of conservatives that would boost Republicans’ electoral advantages.

In his 277-page opinion, U.S. District Judge Jesse Furman in Manhattan said that Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”

[…]

The case was a consolidation of two lawsuits — one brought by the ACLU and the other by a multi-state coalition — and is among some half dozen cases across the country challenging the decision, which was announced last March. Furman’s case was he first to go trial and he is the first judge to reach a decision on the merits.

It is also an issue already headed to the Supreme Court, so it is unlikely that Furman’s word will be the last one. After the Trump administration fought tooth and nail Furman’s order that Ross be deposed for the case, the Supreme Court blocked the deposition and scheduled a hearing on whether Ross’ motive for adding the question should play a role in the case for February.

Furman said that his decision Tuesday was based solely on the so-called administrative record — the official record that administration put forward justifying its process of coming to a decision on the question.

By basing his ruling only on the administrative record, Furman segregated his findings from the contentious issue at the heart of dispute the Supreme Court will hear next month.

“Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were,” he said.

While ruling with the challengers on the Administrative Procedures Act claim, the judge did not find a constitutional due process violation, as the challengers alleged.

“In particular, although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination,” he said. “To be fair to Plaintiffs, it is impossible to know if they could have carried their burden to prove such discriminatory intent had they been allowed to depose Secretary Ross, as the Court had authorized last September.”

His opinion took a not-so-veiled swipe at Justice Neil Gorsuch, who wrote, when the dispute over deposing Ross was at the Supreme Court at an earlier stage, that there was nothing wrong with a new cabinet secretary “cutting through red tape.”

“[A]lthough some may deride its requirements as ‘red tape,’ the APA exists to
protect core constitutional and democratic values,” Furman wrote. “It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures — in short, it ensures that agencies remain accountable to the public they serve.”

See here for the previous update. Though you wouldn’t know it from the slavish devotion our state leaders pay to Donald Trump, this ruling is very good for Texas. There will of course be an appeal and as noted this will surely make its way to SCOTUS, but for now this is a big win. ThinkProgress, Slate, and Mother Jones all have good analyses of the opinion, so go check ’em out.

Trump administration seeks to dismiss MALDEF lawsuit over Census citizenship question

It’s hard to keep all these Census lawsuits straight.

As multiple court fights over the addition of a citizenship question to the once-a-decade census heat up, the Trump administration is working to keep several Texas groups representing Latino and Asian residents on the sidelines.

In a late Friday filing, attorneys for the U.S. Department of Justice asked a Maryland-based federal judge to toss a lawsuit filed by the Mexican American Legislative Caucus and the Texas Senate Hispanic Caucus — among other Texas-based organizations — that’s meant to block the controversial question from appearing on the census questionnaire in 2020.

Those groups allege that the addition of the citizenship question is unconstitutional because it will lead to a disproportionate undercount of Latino and Asian residents, non-citizens and their family members. Justice Department lawyers responded by challenging the plaintiffs’ standing to dispute the federal government’s decision to ask about citizenship status, and they argued it was unlikely the plaintiffs would be able to prove that the question would be harmful to them.

“The relief sought in this suit — an order barring the Secretary of Commerce from collecting demographic information through the decennial census — is as extraordinary as it is unprecedented,” the Justice Department attorneys wrote in the filing.

[…]

Throughout the almost 100 pages of legal briefs filed with the court on Friday, attorneys for the Trump administration sought to undermine those undercount concerns, repeatedly describing them as “too attenuated and speculative” to provide those challenging the inclusion of the question with firm legal standing.

A drop in responses and the alleged potential fallout “would be not be fairly traceable to the Secretary’s decision but would be attributable instead to the independent decisions of individuals who disregard their legal duty to respond to the census,” they wrote.

The Trump administration hasn’t had much success in fending of legal challenges to the citizenship question. As of this week, judges have greenlighted five federal lawsuits despite the administration’s objections.

[…]

In its Friday response, the Trump administration put forth several of the same arguments it presented in the Maryland suit [U.S. District Judge George] Hazel already ruled could move forward and even offered a rebuttal to what DOJ lawyers described as the judge’s “misguided” analysis.

See here for more on this lawsuit. In addition to the one in Maryland noted in the story, the lawsuit in New York was allowed to proceed as well. Given that the plaintiffs have discretion over where they file, you’d think that would bode well for this one as well.

Census lawsuit proceeds

Good.

A federal judge in New York on Thursday allowed a lawsuit challenging the addition of a citizenship question to the Census to move forward. U.S. District Judge Jesse Furman’s decision rejected the Trump administration’s request to dismiss the lawsuit, which was brought by numerous states and localities.

The judge said that the court has jurisdiction to review Commerce Secretary Wilbur Ross’s decision to add the question, rejecting the administration’s arguments that Ross could be insulated from judicial review.

Furman said that while Ross indeed had the authority under the Constitution to add the question, the judge concluded that the exercise of that authority in this particular case may have violated the challengers’ constitutional rights.

At this stage of the proceedings, Furman is required to assume the challengers’ allegations are true, and he must draw any inference from those allegations in the challengers’ favor. In doing so on Thursday, Furman said that the challengers “plausibly allege that Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect. ”

See here, here, and here for the background. Nothing really new here, just another chance for me to say that this absolutely was motivated by discrimination and that it would be very nice to have it halted by the time the counting actually begins. Daily Kos and NPR have more.

Census lawsuit may proceed

Good.

A federal judge said Tuesday that there was a “strong showing of bad faith” by the Trump administration in adding a controversial question about US citizenship to the 2020 census. The judge hinted that he would allow the case to move forward over objections from the administration, and senior administration officials will be subjected to questioning under oath about why the question was added.

Judge Jesse Furman of the Southern District of New York, who was appointed by President Barack Obama, said the administration “deviated from standard operating procedure” by adding the question with no testing. Furman ruled that the plaintiffs challenging the question—including the state of New York and the American Civil Liberties Union—can depose senior officials from the Commerce Department and Justice Department as the case moves forward.

The census has not asked respondents about their citizenship status since 1950. Civil rights groups say the citizenship question will depress response rates from immigrants, imperil the accuracy of the census, and shift political power to areas with fewer immigrants. The census determines how $675 billion in federal funding is allocated, how much representation states receive, and how political districts are drawn.

Commerce Secretary Wilbur Ross, who oversees the Census Bureau, approved the citizenship question in March, saying it was needed for “more effective enforcement” of the Voting Rights Act. Ross said at the time and in subsequent testimony before Congress that he approved the question after the Justice Department requested in December 2017 that it be added.

However, Ross stated in a memo he filed to the court on June 21 that he first considered adding a citizenship question to the census after he was confirmed as commerce secretary in February 2017, months before the Justice Department requested the question. He wrote that he had approached the Justice Department about the question, not the other way around, after consulting with “other senior Administration officials” who had “previously raised” the citizenship question.

Furman cited Ross’s memo to question his truthfulness and the administration’s motives in adding the question. “It now appears these statements were potentially untrue,” Furman said of Ross’ claims that the question was added at the Justice Department’s request. “It now appears that the idea of adding a citizenship question originated with Secretary Ross and not the Department of Justice.”

See here and here for some background. The judge did subsequently allow the lawsuit to go forward, while also granting the motion for discovery. I for one can’t wait to see what bits of treasure that digs up. Time is of the essence here, so I hope there’s a speedy schedule to get us towards a resolution.

Concerns about the Census

We need to pay attention to this.

Latino leaders are warning of a developing crisis in the 2020 census and demanding that the Census Bureau act aggressively to calm fears in immigrant populations about data misuse.

Citing focus groups and initial interviews in Texas and across the country, the bureau’s Mikelyn Meyers recently reported “an unprecedented groundswell in confidentiality and data sharing concerns” related to the 2020 count.

“We’re concerned that this may present a barrier to participation in the 2020 census,” she said. “And this is particularly troubling due to the disproportionate impact on hard-to-count areas.”

Harris County, which is roughly 42 percent Hispanic, has long been an area of concern for the Census Bureau. Last spring, officials tested new technology in only two counties – Harris and Los Angeles – aimed at improving response rates in hopes of finding solutions before 2020.

More than 1.45 million people live in what are considered “hard-to-count” census tracts in the nine congressional districts that include Harris County, according to U.S. census data analyzed and mapped by the City University of New York’s Center for Urban Research. The researchers counted tracts with response rates below 73 percent in the 2010 census as “hard to count.”

Laura Murillo, president and CEO of the Houston Hispanic Chamber of Commerce, noted that the Latino community has historically shied away from participating in census surveys. For the 2010 census, the Houston chamber hosted information sessions and explained that responses assist the government in making decisions about how to spend federal tax dollars.

While Murillo said the chamber is willing to partner with the Census Bureau again, the federal government’s actions on immigration have alienated many Latinos and will make openly sharing information with government officials a hard sell. She cited the Trump administration’s decisions to push for a border wall and end the Deferred Action for Childhood Arrival program, also known as DACA, as reasons some may find to be wary.

“Trust has been breached,” she said.

Two things to remember. One is that the Census is actually specified in the Constitution, so just on that alone it’s a big deal. Two, in addition to political purposes such as apportioning Congressional districts, businesses and academics and local governments and more rely heavily on the demographic and economic data that the Census provides. We need to get this right, and that means (urk) depending on the Trump administration to not screw it up. You can see why people are raising the alarm.

Who’s ready for the Census?

The good news is that Houston is in pretty decent shape, at least as far as big cities go, in being ready for the 2010 Census. The bad news is that a lot of other big cities aren’t ready at all.

With the 2010 census looming, major U.S. cities whose residents are at high risk of being missed are struggling with a shortage of money and manpower to prepare for an accurate count.

A study by the Pew Charitable Trusts, released Monday, found several cities with substantially fewer resources than it had in 2000. City officials also expressed concern about a possible poor turnout next year, citing difficulties in finding displaced residents due to home foreclosures and skittish immigrants wary of filling out government forms.

Earlier this month, the Commerce Department ruled out seeking a temporary halt to large-scale immigrant raids as a way to boost participation in hard-to-count communities.

“Nobody is expecting a good census in 2010,” said Joseph Salvo, New York City’s population division chief. “I’m not optimistic. Since the last census we had 9/11, privacy issues, trust of government issues. And there’s been no public declaration that we’re going to suspend immigration raids like in 2000.”

Pew’s review of preparation efforts in 11 major cities, which had undercounts of residents in 2000 of up to 1.5 percent, found only five cities had committed public funds to census outreach — Los Angeles, New York, Houston, Phoenix and Baltimore. Even when cities had allotted funds, most were at sharply lower levels compared to 2000, due to the recession that has made state budgets tight.

[…]

In 2000, the bureau noted for the first time an overcount of 1.3 million people, due mostly to duplicate counts of more affluent whites with multiple residences. About 4.5 million people were ultimately missed, mostly blacks and Hispanics.

Yeah, that would be just what we need. I really hope this turns out to be an overly pessimistic view of the situation, but I can’t say I feel optimistic about that.

Fish farming in the Gulf?

Not sure what I think about this.

Regional fishery managers have a plan to open the Gulf to the first industrial-scale fish farms in federal waters.

The proposal — intended to help reduce the nation’s reliance on imported seafood — calls for raising millions of pounds of amberjack, red snapper and other Gulf species each year in submerged pens three miles to 200 miles off the coast.

But the plan has raised concerns from environmental and fishing interests about how to protect the Gulf’s wild fish stock and waters from disease, pollution and other threats that have troubled fish farms in other countries.

What’s more, some of the plan’s critics contend that the Gulf of Mexico Fishery Management Council, which is responsible for the Gulf’s fish population, shouldn’t act before Congress establishes federal regulations for the emerging industry.

“We’re not fundamentally opposed to fish farms,” said George Leonard, director of the Ocean Conservancy’s aquaculture program. “But we need to get it right the first time, and one way of doing it is to have a national debate.”

The time is apparently now, because the plan was approved, though it still has to get past the Commerce Department.

Those against the plan say the large cages and pens that would raise fish far offshore would pollute the oceans with fish waste and chemicals. Farmed fish, which often get heavy doses of antibiotics, can also escape into the wild and interfere with native species.

“We simply do not want this,” said Avery Bates, vice president of the Organized Seafood Association of Alabama. “Do not allow this, I don’t care who’s pushing your buttons … Don’t put us out of business.”

Bates, who represents about 200 commercial fishermen in Alabama, said there was fear that foreign companies would buy permits to farm fish offshore and then sell the fish at reduced prices, undercutting U.S. fishermen.

The United States takes in about $10 billion in seafood imports a year and exports only about $2.7 billion, according to data from the Commerce Department. About 80 percent of all seafood consumed in the United States is imported.

Commercial seafood company owner John Ericsson favors the plan. He said the United States has fallen behind countries such as Greece, Norway and Chile, where offshore farming has taken off.

His said his company, Florida-based BioMarine Technologies Inc., is looking at growing fish in cages that could contain up to 60,000 cobia, also known as king fish in the Northeast, and amberjack. He said it would take about $10 million to set up an offshore fish farm.

“It’s a serious business commitment,” he said.

Besides creating jobs, fish farming is important for the nation’s food security, he said. “Just think if someone was able to wipe out our cows and other land creatures with an anthrax. Where would we get our protein from?” he said.

I have to say, neither of those arguments strike me as particularly compelling. Surely the advocates on either side can do better than that. I think I’m just going to have to read around and see what I can learn about them before I come to any judgment about this. What do you think?