National Security

The Revenge Obama Judges

It's but one example of how they've thwarted Trump's agenda; experts predict citizenship challenge will fail, but litigation continues

Experts and advocates of lower levels of immigration on Friday predict a short life for a lawsuit challenging a planned citizenship question on the 2020 census.

U.S. District Judge Jesse Furman in New York ruled Thursday that the legal challenge by 18 states and the District of Columbia, along with five nongovernmental organizations, can move forward.

The judge, an appointee of former President Barack Obama, acknowledged that the federal government has the authority under the Constitution to ask respondents in the 2020 census whether they are citizens or not.

But Furman ruled that the plaintiffs “plausibly allege that [Commerce] Secretary [Wilbur] Ross’ 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.”

The judge’s rationale follows the same track a number of other judges have pursued in other cases in which they parsed the words and tweets of President Donald Trump.

Furman details some of those, including the president’s reported use in a private meeting of the phrase “[s-hole] countries” to describe certain Third World nations.

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But Hans von Spakovsky, a legal expert at the conservative Heritage Foundation, said he does not believe the decision will stand.

“This ruling is another ruling based on ideology, not the law,” he said. “It’s another part of the resist-Trump movement that has infected the federal judiciary.”

Von Spakovsky also noted there is nothing remarkable about the government determining which of its residents are citizens and which are noncitizens. The census form has included a citizenship question in the past, and although it has not in recent years, the Census Bureau does ask the question on its American Community Survey, which is used to gather data between census years.

“The United Nations recommends this question be asked by all countries on their census surveys,” he said.

Ross, whose agency oversees the Census Bureau, agreed to include the question at the request of the Department of Justice (DOJ) in order to assist the agency enforce the Voting Rights Act.

The plaintiffs contend the real aim is to discriminate against noncitizens and scare them away from participating in the decennial head count.

Ira Mehlman, a spokesman for the Federation for American Immigration Reform (FAIR), said it is hard to think of another country where counting citizens would be considered controversial, let alone questioned by the courts.

“Certainly, none comes to mind,” he said.

Mehlman pointed to the Supreme Court’s ruling in the travel ban case, in which the justices set aside lower court rulings that had relied on Trump’s campaign statements and tweets in blocking his order temporarily halting travelers from certain terrorism-compromised countries.

“That would now seem to be a matter of settled law … That already has been rejected by the Supreme Court,” he said. “There’s no reason to think this wouldn’t be as well.”

The judge, however, rejected the Justice Department’s argument on that very point. He wrote that the argument “falls somewhere between facile and frivolous.”

“This is a political lawsuit, where whether they win or not, they at least get the discovery,” he said.

Christopher Hajec, director of litigation at the Immigration Reform Law Institute (IRLI), said the plaintiffs have a plausible argument that their case is different from the travel ban case.

The travel ban case dealt with matters of national security and admission of foreigners, where courts traditionally have granted wide deference to the executive branch.

Related: Census Challenge Is ‘Laughable,’ Kansas Secretary of State Says

The census lawsuit more likely falls in the realm of discrimination law, Hajec said. Still, he added, the plaintiffs will have a hard time ultimately proving the government’s actions amount to discrimination.

“I think it’s a long shot. I think they think it’s a long shot,” he said.

Hajec suggested the real goal of the plaintiffs might be to force the government to turn over emails and documents that might be embarrassing.

“This is a political lawsuit, where whether they win or not, they at least get the discovery,” he said.

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