Wilbur Ross's Census Shutdown Is Against the Rule of Law

(Bloomberg Opinion) -- Secretary of Commerce Wilbur Ross appears to be openly flouting the law in connection with the census — again. This is the same cabinet official who was slapped down by the Supreme Court for violating proper legal procedure in trying to introduce a citizenship question to the census. Now, Ross has announced his intent to end the census counting early, on October 5, even though a federal district judge ordered him last week to let the counting continue until the scheduled end date of October 31.

If this sounds crazy, that’s because it is. It’s not normal for executive branch officials to violate court orders directed explicitly at them. Violating a federal judge’s order undermines the rule of law. It is ordinarily met with sanctions that can range from large fines to imprisonment. The judge will now have to decide what steps are appropriate, and fast.

These recent events grow out of a lawsuit brought by a combination of counties, cities and nongovernmental organizations against Ross and the official in charge of the census, Steven Dillingham. The suit challenged a “replan” issued by the Census Bureau in August that said, among other things, that census counting would end on September 30, 2020, a month before the originally planned end of October 31.

On September 24, Judge Lucy Koh, a highly respected judge, issued an injunction blocking the new proposed date. Her reasoning was that Ross and Billingham and their agencies had not offered an adequate, legitimate, reasoned explanation for the change. That failure violated the Administrative Procedure Act. This was essentially the same reasoning used by Chief Justice John Roberts and the Supreme Court in 2019 to block the citizenship question from the census.

An injunction is just the legal name for an order. The final paragraph of the injunction, indeed, says as per usual that “IT IS HEREBY ORDERED” that the September 30 date is stayed and that Ross and Dillingham are “enjoined from implementing” the deadline. That means, literally, that they are ordered not to implement it. The capital letters are traditional — they are supposed to show that the court means business.

As legal orders go, it doesn’t get much clearer. Yet on September 28, just four days after the order, the Commerce Department posted on its website a tweet stating that “the Secretary of Commerce has announced a target date of October 5, 2020 to conclude census self-response and field data collection operations.”

It is hard to read this announcement as anything other than a direct contradiction of the judicial order. The only conceivable argument that Commerce Department lawyers could make in its defense is that the announcement isn’t implementing the September 30 deadline that the judge addressed, but instead announcing a new and different deadline of October 5. Technically, they might try to claim, Ross isn’t implementing the September 30 deadline, which the judge ordered him not to do. He’s creating an entirely new deadline.

To say this would be a flimsy argument is to treat it with more respect than it deserves. If it were a fig leaf, it would be a fig leaf the size of a postage stamp.

The whole point of Koh’s order was that Ross didn’t give an adequate explanation of the September 30 deadline, and that it was therefore unlawful. Ross hasn’t given any explanation at all of the new October 5 deadline. It follows as a matter of logic that this deadline, too, is unlawful.

What’s more, the clear intent of the judge’s order was for the census count to continue until October 31. True, Koh didn’t use those exact words. But that’s because her job as judge is simply to rule on the legality of the Commerce Department’s purported replan, which she did.

The next step will be for the plaintiffs in the case to go back to the judge and ask her to enjoin the new plan. That’s simple enough.

Yet the plaintiffs should go further than simply asking the judge to reissue her exact same order, this time with reference to the October 5 date. And they should go further than asking her, as they surely will, to make it explicit this time that the census counting has to continue until October 31 unless the Department of Commerce issues some reasoned, logical, adequate explanation of any plans to do otherwise.

The plaintiffs should also ask the judge to consider meaningful sanctions against Ross — the kind that are appropriate for a high-ranking public official who openly violates a judicial order.

What’s at stake is, of course, the accuracy of the census, on which districting will be based for the next decade. But what’s also at stake is the rule of law. If parties before the court defy judicial rulings, it leads to disorder. When the defiant party is an executive branch official with a duty to take care that the laws be faithfully executed, the result is a fundamental challenge to constitutional government itself.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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