Wednesday Hump Day Edition

Canary. Photo by 4028mdk09.

Update I: The law is clear

On the Monday before Thanksgiving news came down that US District Court’s Judge Tigar issued a temporary, nationwide restraining order blocking the Trump administration’s attempts to rule by executive fiat when they issued on Nov 9, “A Proclamation,” attempting to rewrite congressional asylum laws through an executive order.

“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Tigar wrote in his ruling.


Judge Tigar’s injunction went into effect immediately and ruled it would last until Dec 19, which is when he set the date to hear considerations.

On Tuesday, Courthouse News reported, Judge Tigar “didn’t cut any slack for the Justice Department” when they filed an emergency motion for a stay on Tigar’s Nov 19 order to “lift the ban on the Trump administration’s asylum policy pending an appeal to the Ninth Circuit.”

Tigar “questioned why the government waited eight days to file the motion,” and expected a ruling within one day “without allowing plaintiffs … a chance to respond.”

Judge Tigar’s one-page order reads:

     The Court issued a temporary restraining order on November 19, 2018. ECF No. 43. Today – eight days later – Defendants filed a notice of appeal, ECF No. 51, and an emergency motion for a stay pending appeal, ECF No. 52. Defendants request that the Court rule on their motion within one day, without giving Plaintiffs an opportunity to respond. ECF No. 53 at 2.

     Given that Defendants waited eight days to file their motion for a stay, the Court cannot reasonably conclude that the issues presented require resolution within on day and without an opportunity for the opposing parties to be heard. Nonetheless, recognizing the time-sensitive nature of this case, the Court GRANTS IN PART the motion to shorten time.

     Plaintiffs shall file their opposition to the motion for a stay by November 29, 2018 at 5:00 p.m. There will be no reply. The Court will rule on the motion by the end of November 30, 2018.

Courthouse News; pdf

“IT IS SO ORDERED.” ~ Signed: Jon S. Tigar; United States District Judge

Update II: Census Citizenship Trials

There have been a few notable update in the series about the Census Citizenship question worth remarking upon.

 As noted in the last update, the first trial set in US District Judge Jesse Furman’s federal court in Manhattan kicked off on Nov 5th as scheduled, despite the Defendant’s DOJ attorneys’ attempts to delay.

On November 16, this happened during the proceedings.

Andrew Case, one of the attorney’s representing plaintiffs in one of the six cases, this one in the US District Court in Northern District of California, made a court filing of a June 12 internal email from the Trump administration between the chief of staff Ben Aguinaga and his boss DOJ Attorney in the Civil Right division John Gore discussing the possibility that “sharing individuals’ census information with law enforcement and national security officers may ‘come up later for renewed debate.’”

Aguinaga writes to his boss as they draft a response to Rep Gomez (D-CA) question if the DOJ under Trump ‘agrees with a 2010 DOJ memo confirming the Patriot Act could not force the Commerce Secretary to release individuals’ confidential census information,” saying,

“Both answers are taken almost verbatim from the transcript of your hearing. The second draft answer does not directly address the question … I don’t think we want to say too much there in case the issues addressed in the OLC [Office of Legal Counsel] opinion or related issues come up later for renewed dabate.”

Needless to say, not a good look for Trump’s DOJ people here, as they add another hammer to the already bag full of hammers as their lies and machinations continue to pile up to be used to hit them over their heads with.

Aguinaga has since left the DOJ and is now a law clerk for Supreme Court Justice Samuel Alito.

Which leads to the second update: Nov 20, Judge Furman, once again, had to issue a memorandum opinion and order after the DOJ, again, attempts to delay the closing arguments set for the first trial, ending with, “Enough is enough.”

In the seven-page order, Judge Furman starts out saying,

“The Defendants, through their attorneys at the Department of Justice, have tried and failed repeatedly to halt the orderly progress of this litigation. Their latest and strangest effort is a motion to stay all further proceedings, including entry of final judgement, pending the Supreme Court’s resolution of their challenge [to] this Court’s discovery-related orders. What makes the motion most puzzling, if not sanctionable, is that they sought and were denied virtually the same relief only weeks ago – from this Court, from the Second Circuit, and from the Supreme Court itself.

Case 1:18-cv-02921-JMF Document 544 Filed 11/20/2018; pdf

Furman’s order is worth a quick read to get an idea just how badly they have messed up. It is really not a full seven pages, probably only adds up to four short pages after skimming over the court citing’s and footnotes.

At the time of that order the Defendant’s DOJ attorneys had attempted to once again file a motion to stay, based in part on the premise that granting the stay “would help conserve judicial resources.”

Furman calls this the “most galling insofar,” saying that “if Defendants were truly interested in conserving judicial resources, they could have avoided burdening this Court, the Second Circuit, and the Supreme Court with twelve stay applications in the last eleven weeks.”

Maybe if he actually had sanctioned them, they would not have attempted numbers thirteen and fourteen, the latter one an appeal to the Supreme Court on the night before closing arguments, Courthouse News reported on Tuesday.

Which leads into update number three: Closing arguments happened yesterday, as Judge Furman planned.

“Some of you tried hard not to be there, but welcome back nonetheless,” U.S. District Judge Jesse Furman told attorneys for the government.

Courthouse News

For a round up of closing arguments, see Courthouse News’ Adam Klasfeld’s live tweet feed here, and his final write-up here.

Here is a sobering thought that came out of closing arguments yesterday. Much has been made about the fact that the citizenship question was taken out in 1950 and has not been included since that time.

Arguing for the American Civil Liberties Union, Arnold & Porter attorney John Freedman invoked other troubling background surrounding the survey.

“We have a history in this country of misusing census data,” Freedman said, citing its use to enact Japanese internment in the 1940s.

Though the United States added confidentiality protections to the census after World War II to prevent such an abuse from happening again, trial evidence showed that fear that the data would be shared with law enforcement ran strong in Latino communities.

Courthouse News

About the opinions in this article…

Any opinions expressed in this article are the opinions of the author and do not necessarily reflect the opinions of this website or of the other authors/contributors who write for it.