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Supreme Court gives Trump a win for now in fight over Wilbur Ross testimony

Donald Trump and greets Wilbur Ross for a meeting at Trump National Golf Club in Bedminster, New Jersey, U.S., November 20, 2016. REUTERS/Mike Segar

In a victory for the Trump administration, the Supreme Court has ruled that Commerce Secretary Wilbur Ross won’t have to testify in a dispute over the census — for now.

The ruling, issued by the Court Monday, stems from a case before the U.S. District Court for the Southern District of New York, one of six cases challenging Ross’s approval of a citizenship question added to the 2020 census. A group of state attorneys general, cities, and civil rights groups are challenging the question, claiming it discourages non-citizens from participating in the census.

In September, the Trump administration asked the Supreme Court to temporarily halt Ross’s deposition, after the New York federal court ordered it to go forward based on an exception to a rule that typically protects high-ranking administration officials from compelled testimony. The court said the exception applied based on its conclusion that Secretary Ross — whose department oversees the census — acted in extraordinary bad faith by adding the citizenship question, in part because he offered conflicting explanations for what motivated the change.

There may not be enough evidence to force a deposition

In the Justice Department’s application for stay, it attached an additional account of how Ross came to revive and approve the citizenship question.

“Normally, judicial review of an agency action like this is limited to the record the agency has compiled to support its decision,” Justice Neil Gorsuch wrote in his Monday opinion, which blocks Ross’s deposition until at least Monday, Oct. 29. The deposition will remain on temporary hold if the administration petitions the court and the Court agrees to take the full matter under consideration.

The Gorsuch order went on to say that the plaintiffs’ evidence offered in support of its claim of bad faith may be inadequate to justify the allegation and compel inquisition into a cabinet secretary’s motives.

“[T]here’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape,” Gorsuch wrote.

The citizenship question was last included on the full census in 1950 and began appearing on the long form in 1970. Its reinstatement is hotly contested by governments and organizations that stand to benefit from leaving the question off the census questionnaire.

Plaintiffs argue that inclusion of the question will discourage both legal and illegal non-citizen residents from participating, resulting in an undercount of U.S. residents — particularly in blue-leaning states. Disproportionate representation, opponents claim, is discriminatory and politically motivated because census data determines federal funds distributed to state governments, redistricting borders, and the number of seats allocated to Congressional districts and the electoral college.

Proponents of the question argue that federal funding and representation should not be allocated based on populations of non-citizen residents. They argue that the question was long included as part of the census for decades.

The court gave the administration until October 29 to petition for review. Its decision would guide the extent of permissible discovery for the 18 state governments, cities and civil rights plaintiffs challenging the citizenship question.

Additional discovery requested by plaintiffs in the New York case is permitted to go forward, including the deposition of interim Justice Department civil rights head John Gore.

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Alexis Keenan is a reporter for Yahoo Finance.

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