In a hearing in a New York courtroom and in court filings in Washington — two separate but similar cases — the government argued Thursday that the case is not yet ripe because Commerce Secretary Wilbur Ross has not yet determined whether he has enough information to carry out President Donald Trump’s directive.
“You don’t have the second set of numbers [excluding undocumented immigrants] and you couldn’t possibly say exactly what the problem will be,” Sopan Joshi, a senior Justice Department attorney, argued in the New York hearing. “We should wait to see what is feasible, what those numbers are, and then the case can proceed.”
Attorneys for the state of New York and the groups that have banded together for the challenge argued that waiting until after the count is completed will be too late. Dale Ho of the American Civil Liberties Union, who represents several of the groups, argued that some noncitizens are not responding to the census right now because President Donald Trump’s directive makes their participation “a futile act.”
“The participation of undocumented immigrants will ultimately be irrelevant,” Ho argued.
Absent an order to extend the census count — the subject of other lawsuits — it is set to end this month.
One of the three judges considering the New York case drew the government attorneys into a heated exchange after he asked them, “I wonder why we have to wait?”
Judge Richard Wesley pressed Joshi on how the government could determine who is and who isn’t a citizen, given that a citizenship question was not included on the census: “Where is he getting the data from? Where is he getting the data from? He’s not getting the numbers from the Census Bureau data, is he?”
When Joshi explained that the Census Bureau “maintains administrative records,” or data collected from other agencies, Wesley scolded him, directing him to “answer my question with respect, please.”
Joshi ultimately conceded that the government is not currently distinguishing between citizens and noncitizens when counting people.
He said that Ross would present to Trump two sets of numbers at the same time: one, a count including the entire population, and the second, a count excluding undocumented immigrants.
“The secretary is providing both numbers in parallel rather than in serial,” he explained.