Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. In a highly
Speaker 1: anticipated ruling, a federal judge has blocked the Trump administration's
Speaker 1: plan to put a question about citizenship on the It's
Speaker 1: In a two seventy seven page opinion, Judge Jesse Furman
Speaker 1: said that Secretary of Commerce Wilbur Ross violated the law
Speaker 1: and the public trust in putting that question on the census.
Speaker 1: Joining me is Thomas Wolfe, counsel with the Brennan Center's
Speaker 1: Democracy Program. Thomas, it is a long opinion. Can you
Speaker 1: give us the main reasons? Judge Furman said he blocked
Speaker 1: the question. You're right, it was a long opinion and
Speaker 1: it's hot off the presses. But here's the general takeaway.
Speaker 1: We know that under federal law, in this case, it's
Speaker 1: the Administrative Procedure Act, agencies are supposed to have rational, intelligent,
Speaker 1: evidence based, and logical reasons for making the decisions they
Speaker 1: make when they exercise their powers and that they make
Speaker 1: all of those decisions clear in the representations to the public.
Speaker 1: What Judge Furman said was, if you look at the
Speaker 1: paperwork on all the decisions made by Secretary Ross to
Speaker 1: add the citizenship question, he flew in the face of
Speaker 1: the evidence that his own agency at the Census Bureau,
Speaker 1: had compiled. He created a pretext for adding the question,
Speaker 1: meaning the reason why he claimed he added the question
Speaker 1: wasn't the real reason he added the question, and that
Speaker 1: he violated all these different rules that are put in
Speaker 1: place to make sure that when the government makes decisions
Speaker 1: on our behalf, it makes some on the basis of
Speaker 1: clear evidence, and they violated all those rules. Did the
Speaker 1: judge specifically address the plaintiff's claim and the claim of
Speaker 1: advocates at the real intent of the question was to
Speaker 1: intimidate illegal immigrants from answering and depress their official numbers
Speaker 1: in the census. But Judge Furman noted on that point
Speaker 1: was that there's still an open question about why Secretary
Speaker 1: Ross ultimately decided to add the citizenship questions. Secretary Ross
Speaker 1: claimed that the reason why he was doing it was
Speaker 1: to help enforcement of the Voting Rights Act, but the
Speaker 1: evidence showed that that clearly was not the reason why
Speaker 1: he decided to make that decision. In fact, that was
Speaker 1: pure pretext, and Judge Furman described that as a sort
Speaker 1: of laundering of some other intent. What Judge Furman noted, though,
Speaker 1: was that there wasn't enough evidence in the record to
Speaker 1: conclude that the question was at it for discriminatory purposes.
Speaker 1: At the same time, though, he said, had the plaintiffs
Speaker 1: been able to depose Secretary Ross, that is, get him
Speaker 1: up on the stand and ask him questions under oath,
Speaker 1: they might have been able to get at the real reason.
Speaker 1: So the gist of it is on the basis of
Speaker 1: Judge Furman's opinion that we don't know exactly why the
Speaker 1: Census Bureau decided to add this question, and specifically Secretary
Speaker 1: Ross decided to add this question, but it certainly is
Speaker 1: not because of any interest in enforcing the Voting Rights Act.
Speaker 1: Was there any other defense put up by the Justice
Speaker 1: Department besides that related to the Voting Rights Act? The
Speaker 1: Justice Department hinged a lot of its defense on this
Speaker 1: notion that everything that was happening here was purely above
Speaker 1: board and it was done to enforce the Voting Rights Act.
Speaker 1: They argued though in a a lot of their papers.
Speaker 1: But something that Judge Furman disposed it very quickly was
Speaker 1: that it wouldn't matter as Secretary Ross had some other
Speaker 1: reason for adding the question, as long as his stated reason,
Speaker 1: the Voting Rights Act rationale was legit. As Judge Furman said,
Speaker 1: that doesn't hold water. That's not the way agencies should work.
Speaker 1: They shouldn't have secret reasons for doing what they're doing
Speaker 1: that they hide behind fake reasons that they give out
Speaker 1: to the public. So dj wasn't able to succeed on
Speaker 1: that front. There are several lawsuits to block the question.
Speaker 1: How does this opinion by a New York federal judge
Speaker 1: fit In? This opinion lays out a very clear roadmap
Speaker 1: for the judges in the other cases that are currently
Speaker 1: depending in California and Maryland. They're not legally bound to
Speaker 1: follow Judge Furman's decision, but this decision is so thorough,
Speaker 1: incredibly well reasoned, and in many cases overlaps with issues
Speaker 1: that are raised in those cases that it's difficult to
Speaker 1: see these other courts arriving at alternative decisions. So I
Speaker 1: would say at this point, the challengers the question have
Speaker 1: the wind at their back. They have real momentum. Now,
Speaker 1: now let's talk about the Supreme Court, which is hearing
Speaker 1: an appeal related to the trial in February. Has considered
Speaker 1: some aspects of it. Is it likely that the Supreme
Speaker 1: Court is going to have the final word on the
Speaker 1: citizenship question. It's hard to say exactly how the Supreme
Speaker 1: Court appeal process is going to play out because the
Speaker 1: Department of Justice has repeatedly said that it needs a
Speaker 1: final decision before June this year, and that's when the
Speaker 1: census forms have to start going to the printer. That
Speaker 1: leaves us with a very compressed time frame. So it's
Speaker 1: almost likely that there will be an appeal. How exactly
Speaker 1: that plays out not abundantly clear at the moment. That
Speaker 1: should become clear in the next few weeks. But along
Speaker 1: and short of it is that the Supreme Court should
Speaker 1: have a ruling in this case that will serve as
Speaker 1: the final ruling before the end of its term, which
Speaker 1: happens at the end of June. Is June really a
Speaker 1: hard and fast deadline or can that be moved? The
Speaker 1: census is a very delicate process that requires everything being
Speaker 1: done in a certain sequence at a certain time. So
Speaker 1: the Department of Justice and the Commerce Department have repeatedly
Speaker 1: emphasized that June is about as close to a hard
Speaker 1: deadline as you're going to get, and in that case,
Speaker 1: it seems like the courts are taking them at their
Speaker 1: word and will move forward on that basis. Now, what's
Speaker 1: happening on the ground, so to speak, with the Census Bureau? Now,
Speaker 1: are they checking out how the questions are going, Are
Speaker 1: they doing any kind of testing or is it all
Speaker 1: on hold because of the lawsuits the bureau? And I
Speaker 1: think an important thing to emphasize here that comes out
Speaker 1: of Judge Freman's opinion is that the people that work
Speaker 1: at the Census Bureau are in many cases the lifetime
Speaker 1: professionals who are really dedicated to making sure the Census
Speaker 1: goes off about a hitch. Not a lot of what's
Speaker 1: happened with the citizenship question was the result of folks
Speaker 1: at the Commerce Department overwriding what the Census Bureau would
Speaker 1: have preferred to do, given that it looks like this
Speaker 1: citizenship question up until Judge Freman's ruling was something that
Speaker 1: the administration wanted. There was already word that they were
Speaker 1: going to begin testing to see what kind of effects
Speaker 1: the question would have. They're also analyzing the results of
Speaker 1: the one field test that was done in Rhode Island
Speaker 1: earlier in to see what effects um the environment of
Speaker 1: fear around adding the citizenship question may have. So there
Speaker 1: may be work going on right now to try to
Speaker 1: triage the damage. But hopefully moving forward, the citizenship question
Speaker 1: will not be on the census and the Census Bureau
Speaker 1: will no longer have to plan and prepare for that.
Speaker 1: Some conservatives say this kind of question has been on
Speaker 1: the census before, why shouldn't it be on the census now.
Speaker 1: So in just about a minute, tell us why any
Speaker 1: representations that the Census has had a two year consistent
Speaker 1: history of asking about the citizenship question is misleading. Where
Speaker 1: it is not completely false, these questions have appeared only
Speaker 1: in a sporadic sense through the nineteenth century, at a
Speaker 1: time when the Census Bureau wasn't even a professional practice.
Speaker 1: In fact, the Census Bureau didn't even exist. After fifty
Speaker 1: when the Census Bureau had actually developed the ability to
Speaker 1: see how well or how badly it was doing the
Speaker 1: job of counting everyone, they discovered that these kinds of
Speaker 1: very long census forms that included things like the citizenship question,
Speaker 1: or actually we in them to be constitutionally deficient in
Speaker 1: counting everyone. We'll have to leave it there. Thank you
Speaker 1: so much times for being on. That's Thomas Wolfe, counsel
Speaker 1: with the Brennan Center's Democracy Program. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I'm June Grasso. This is Bloomberg Ye