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One of Justice Kavanaugh’s first votes could involve a dispute over Wilbur Ross

U.S. Secretary of Commerce Wilbur Ross gestures during an interview with Reuters in his office at the U.S. Department of Commerce building in Washington, U.S., October 5, 2018. REUTERS/Mary F. Calvert
U.S. Secretary of Commerce Wilbur Ross gestures during an interview with Reuters in his office at the U.S. Department of Commerce building in Washington, U.S., October 5, 2018. REUTERS/Mary F. Calvert

Embattled Supreme Court Justice Brett Kavanaugh could cast one of his first votes as a member of the high court in an emergency ruling requested Tuesday by the Trump administration.

The court slated a Thursday deadline for a group of plaintiffs to respond to the administration’s request to block the deposition of Commerce Department Secretary Wilbur Ross in a dispute over whether the census should ask U.S. residents whether they are U.S. citizens.

A civil rights group involved in the case alleges in its response filed Thursday that Secretary Ross made “untrue” statements about how the citizenship question was initiated. The groups claim that Ross “deviated from the standard procedure to change the census questionnaire,” offering “shifting and inaccurate explanations” in his memo and testimony before Congress.

Supreme Court rules allow Justice Ruth Bader Ginsburg to act on the matter alone, since she is assigned to the U.S. Court of Appeals for the Second Circuit, which had ordered Secretary Ross’s deposition. Justice Ginsburg may also choose to refer the matter to the full court.

If tasked with ruling on the matter, Kavanaugh will be lassoed back into controversial territory, weighing the actions of the administration that waged political battle to ensure his lifelong appointment following an allegation of sexual assault.

Reviving a long-dead question about citizenship

A group of 18 state governments, city governments, civil rights organizations, and individuals have filed six separate lawsuits in lower courts, challenging a proposed 2020 census question, that if permitted, would require U.S. residents to answer whether they are U.S. citizens. The question was last included on the decennial census in 1950.

Ross, whose Commerce Department oversees the Census Bureau, is targeted in the lawsuit, along with other Trump administration officials, for approving a Justice Department request to revive the citizenship question.

Plaintiffs argue that a citizenship question defeats the purpose of the census because it dissuades immigrant residents from participating, which results in a census undercount in Democratically leaning states. They allege that the move to add the question is politically motivated and discriminatory.

An undercount could indeed have widespread repercussions. Census data determines federal funds distributed to state governments, redistricting borders, and the number of seats allocated to Congressional districts and the electoral college.

The 2010 census, for example, remains heavily influential today — its data is responsible for the distribution of electoral votes in presidential election years 2012, 2016, and 2020.

As for state funding, a Census Bureau report from 2017 shows that $675 billion in federal funds was distributed in fiscal year 2015 based on census data.

The Justice Department, arguing on behalf of Secretary Ross, says the Supreme Court should block Ross’s deposition — ordered in a case pending in the U.S. District Court for the Southern District of New York — where he will be asked to explain why he green-lighted the citizenship question.

Secretary Ross has said that he approved the citizenship question to aid the administration in enforcing The Voting Rights Act, and testified before Congress that the request was initiated in a December 2017 letter to Commerce from the Department of Justice.

Probing Secretary Ross’s ‘mental process’

Justice Department Solicitor General, Noel Francisco, in his application to the court argues that the New York District Court should not be permitted to enforce its order for the deposition because the aim of the deposition is to probe Secretary Ross’s mental process. Francisco said the Secretary’s mental process is irrelevant to evaluating the legality of an agency’s action.

“Secretary Ross consulted with many parties, including Census Bureau, Commerce Department, and Justice Department officials, before announcing his decision, and he set forth his reasons in a detailed memorandum backed by a voluminous administrative record,” the filing said.

“That Secretary Ross might have subjectively desired to reinstate the question before soliciting the views of the Justice Department,” is irrelevant, the Solicitor General argues, adding that government lawyers offered alternatives means for the plaintiffs to acquire the information they seek.

Francisco goes on to say that the court has already “recognized that compelling the testimony of a high-ranking government official — especially a member of the president’s cabinet — is rarely if ever justified.”

Plaintiffs say there’s justification enough based on the District court’s finding of bad faith, which provides an exception to the rule generally restricting judicial review of federal agency actions.

On Friday, a conservative nonprofit organization requested leave to file an amicus brief in support of the Justice Department. The organization, Eagle Forum Education & Legal Defense Fund, says it wants to intervene, in part because Democrat members of the House have indicated plans to defund citizenship questions if they win control of the House in the upcoming midterm elections.

On Tuesday, Justice Ginsburg issued a stay requested by the Justice Department, pending consideration of the plaintiff’s responses. Census participation is required by law under Article I of the Constitution. All U.S. residents whose addresses are selected for the the census, also known as the American Community Survey, or “decennial census,” are required to complete the questionnaire.

Editor’s note: The headline on this story was changed to reflect that this would be one of Judge Kavanaugh’s first votes, not his first vote.

Alexis Keenan is a reporter for Yahoo Finance.

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