Terry H. Schwadron

March 10, 2019

One more court has weighed in to say that efforts by Commerce Secretary Wilbur Ross to introduce a Census question about citizenship was illegal and “in bad faith,” one in a series of rulings that likely are bringing heartburn to the White House.

Indeed, San Francisco federal Judge Richard Seeborg widened a previous ruling by New York Judge Jesse Furman that Ross had violated the constitutional underpinning of representative democracyby trying to affect the Census outcome. The Supreme Court already had agreed to review the Furman decision, but the constitutional issues now should guarantee a Supreme Court review.

The administration has lost several court decisions involving immigration issues since President Trump took office. But the Census case has taken on special significance because it strikes at the heart of the United States’ form of government and because of what Seeborg described as a “strong showing of bad faith” by a Cabinet secretary who, influenced in part by White House advisers, tried to conceal his motives. A citizenship question is thought to bias the count of persons by county, and thus eventually have an affect on congressional seats and distribution of federal money.

The cases against Ross have been brought by jurisdictions with significant immigrant populations.

Unable to find any expert in the Census Bureau who approved of his plan to add the citizenship question, Seeborg wrote, Ross engaged in a “cynical search to find some reason, any reason” to justify the decision. The judge said Ross was fully aware that the question would produce a census undercount, particularly among Latinos. That, in turn, would have probably reduced the representation in Congress — and thus in the electoral college that decides the presidency — of states with significant immigrant populations, notably California.

Because census data is used to apportion distribution of federal funds, an undercount would also have cheated these same jurisdictions, the judge said.

Seeborg, like Furman, found after a trial that Ross misrepresented both to the public and Congress his reasons for adding the citizenship question last March. Ross claimed he was acting at the request of the Justice Department in the interest of enforcing the Voting Rights Act. In reality, the “evidence establishes” that the voting rights explanation was just “a pretext” and that Ross “acted in bad faith” when he claimed otherwise.

He pursued the citizenship question after hearing from then-White House adviser Stephen K. Bannon and Kris Kobach, the vice chair of Trump’s now-disbanded voting fraud commission.

Apart from violating the Constitution, Seeborg ruled, the Commerce Department breached the Administrative Procedure Act by acting “arbitrarily and capriciously” and violated Census Act restrictions on modifying questions.

In California, a federal court judge has expanded the number of migrant families separated at the border that the government may be required to reunite.

San Diego-based U.S. District Court Judge Dana Sabraw issued a preliminary ruling that would potentially expand by thousands the number of migrantsincluded in a class-action lawsuit brought by the American Civil Liberties Union, according to Reuters. Sabraw already ordered the Trump administration last year to reunite more than 2,800 migrant children who were separated from their parents at the U.S.-Mexico border under the administration’s “zero tolerance” policy

But now he will allow more separated families to join the class-action lawsuit after a report released in January by the U.S. Department of Health and Human Services’ Inspector General, which identified potentially thousands more families that had been separated as early as July 1, 2017. The administration’s “zero tolerance” policy did not take effect until May 2018. “The hallmark of a civilized society is measured by how it treats its people and those within its borders,” Sabraw said in his ruling. Sabraw said that report was “a significant development in this case” and its contents “are undisputed.”

Meanwhile, in a separate update, Homeland Security Secretary Kirstjen Nielsen appeared before the House Homeland Security Committee, where she insisted that the cages Customs and Border Protection (CBP) used to detain migrant and asylum-seeking kids aren’t really cages. “Sir, they are not cages, they are areas of the border facility that are carved out for the safety and protection of those who remain there while they’re being processed,” Nielsen said during an exchange with Committee Chair Bennie Thompson (D-MS).

Thompson, unimpressed with Nielsen’s euphemistic description, responded by telling her, “Don’t mislead the committee.” Thompson said. Under questioning from Rep. Bonnie Watson Coleman (D-NJ) a short time later, Nielsen had a hard time differentiating between CBP’s facilities for detained kids and dog kennels.

More than 2,700 children were separated from their parents and detained by CBP last year. Though President Donald Trump ended the practice with an executive order last summer, government data released last month indicated about 250 parents had been separated from their children since last June.

During the hearing on Wednesday, Nielsen confirmed that some parents were deported without their children, but added that “there was no parent who has been deported to my knowledge without multiple opportunities to take their children with them.” Following the hearing, however, Rep. Kathleen Rice (D-NY) posted a tweet accusing her of lying about that.



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