- The Washington Times
Wednesday, August 5, 2020

A federal judge set an exceptionally fast schedule Wednesday in a case challenging President Trump’s new executive memo deleting immigrants who are in the country illegally from the upcoming census apportionment count, saying he fears immigrants may stop replying to the census as long as the order is out there.

That was an early victory for Mr. Trump’s opponents, who said they’ll soon ask the judge to issue a temporary injunction halting the presidential memo and salvage as much of the census as possible.

Judge Jesse M. Furman blamed Mr. Trump for the schedule, saying if he’d acted before July, there would have been more time to argue the case. He said it was “rich” for the Justice Department to gripe about speed when the president waited until the 2020 count was almost over to announce his memo. His schedule could allow for a ruling as early as the end of this month.

“Had the president announced his decision sooner we would have had plenty of time,” he said in a telephone hearing. “It is what it is. I think plaintiffs are entitled to try to make their case.”

Judge Furman is one of several federal jurists hearing cases filed across the country against Mr. Trump’s policy — though the Obama appointee may be the most consequential.

He was involved in the last major census case when Mr. Trump tried to shoehorn a citizenship question onto the 2020 count. Judge Furman ruled against that effort, finding that it would scare people away from responding to the census.

New York state and the New York Immigration Coalition, both plaintiffs in the new case before Judge Furman, said the same factors are at play in the president’s latest memo.

Mr. Trump said the Census Bureau, in addition to producing its normal count of all residents, should also try to create a count that excludes undocumented immigrants. The president has said that second count may be used in the decennial process of apportioning seats in the House of Representatives.

Such a count could strip a seat or two from states with high populations of undocumented immigrants, such as Texas and California, shifting them to Midwest states like Ohio or Minnesota.

There are major questions about whether a count without undocumented immigrants is possible, and the Justice Department’s lawyer told Judge Furman no decision has been made, and Mr. Trump may well submit the full count of all residents anyway.

She argued that made the lawsuits premature.

But Matthew Colangelo, the lawyer arguing the case for New York, said the existence of the new policy is already tainting the counting.

“The president’s memorandum has penetrated immigrant communities, there’s a high degree of awareness, and the awareness of the memorandum has caused and will cause immigrant families to determine they can’t trust the federal government with their responses,” he said.

Judge Furman said it’s unclear whether, even if he stepped in, a court order could change that at this point. But he said he would speed the case to give New York the chance to prove it.

The Justice Department said they haven’t seen any evidence that immigrants won’t take part, and said the count is about over anyway.

The Census Bureau said this week that about 63% of households have responded, and the bureau is going on a hiring spree and offering bonuses to field workers going door to door, with a Sept. 30 deadline for gathering the data.

That’s a month earlier than the previous schedule.

Bureau Director Steven Dillingham said they need to cut off the count then if they’re to meet the deadline in law for producing a final number by the end of the year.

Democrats blasted the speedier census schedule, saying it will leave some people — particularly in poor, minority and immigrant communities — uncounted.

In the courtroom Wednesday, it was clear that every inch of ground would be fought over.

At one point the proceedings devolved into how long briefs could be.

Mr. Colangelo said New York needed to be able to file a new 65-page brief, far longer than would normally be allowed.

Judge Furman was skeptical. “It seems like 50 pages is probably more than enough,” he said, pointing out that this is already twice the normal length.

And the Justice Department complained that given the speedy schedule, a longer brief could stretch their ability to respond fully in time.

Judge Furman split the baby: “I’m going to give you 55 pages.”

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