In a case likely to reach the Supreme Court in short order, the administration filed a notice in federal court that it would appeal the case to the New York-based 2nd U.S. Circuit Court of Appeals. U.S. District Judge Jesse Furman in Manhattan on Tuesday invalidated the administration’s addition of the citizenship question.
The judge found that Commerce Secretary Wilbur Ross, who oversees the census, concealed the true motives for his “arbitrary and capricious” decision to add the question in violation of federal law.
Despite the appeal, the case may not ultimately be decided by the appeals court. The Justice Department could ask the Supreme Court to step in first, and some legal scholars expect the administration to do so.
The conservative-leaning high court is “less likely to defer to Judge Furman” and “probably more sympathetic” to the government, said Steve Vladeck, a professor at the University of Texas School of Law who is watching the case.
Timing is a factor too, with the Census Bureau required to print questionnaires by June.
The Justice Department had no immediate comment on its plans.
Also on Thursday, the group of states, cities and civil rights groups challenging the administration’s decision to add the citizenship question asked the Supreme Court to throw out a pending Justice Department appeal due to be argued next month.
Lawyers for the challengers, including the state of New York, filed court papers saying that case, contesting the scope of evidence that Furman could consider in ruling on the issue, is moot now that Furman has issued his final decision this week. The case is scheduled to be argued before the justices on Feb. 19.
Opponents have accused the Trump administration of devising a citizenship question to use the census to pursue the political objectives of Trump’s fellow Republicans by engineering an undercount of the true population and reducing the electoral representation of Democratic-leaning communities in Congress.
The 18 states, 15 cities and civil rights groups that sued said a citizenship question would frighten immigrants and Latinos into abstaining from the count.
Reporting by Lawrence Hurley in Washington and Andrew Chung, Nick Brown and Alison Frankel in New York; Editing by Will Dunham, Tom Brown and James Dalgleish