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Rare Three-Judge District Court Panel Draws Two Trump Appointees in Census Dispute


US President Donald Trump pauses after delivering remarks on citizenship and the census in the Rose Garden at the White House in Washington, DC, on July 11, 2019.

The U.S. Court of Appeals for the District of Columbia Circuit on Tuesday designated a three-judge district court panel to preside over a legal challenge to President Donald Trump’s July memo, which ordered the exclusion of undocumented immigrants from the census count used for the apportionment of seats in Congress. U.S. District Judge Christopher Cooper, an appointee of President Barack Obama, will be joined on the panel by U.S. District Judge Dabney Friedrich and U.S. Circuit Judge Gregory Katsas, both of whom were appointed by President Trump.

In his July 21 memo, President Trump declared that it was “the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status” and directed Ross to “take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out th[is] policy.”

A complaint, filed two days later by government watchdog group Common Cause, alleged that the memo violated federal statutory law as well as the U.S. Constitution. The group argued that the Fourteenth Amendment unequivocally requires that every resident be counted in the U.S. Census and included in the basis for reapportioning congressional districts. The lawsuit also alleged that Trump’s memo violated the Equal Protection clauses of the Fifth and Fourteenth Amendments diluting certain citizens’ votes and by taking adverse action against residents on the basis of their race, ethnicity, and national origin.

Attorneys representing Common Cause then filed a letter-motion requesting a three-judge panel pursuant to 28 U.S.C. § 2284. The provision specifically mandates that a “district court of three judges” be convened “when an action is filed challenging the constitutionality of the apportionment of congressional districts.” Attorneys from the Department of Justice did not oppose the motion.

While a three-judge district court panels are rare, another district court trio was recently ordered to preside over a similar lawsuit brought by the state of New York in the Southern District of New York (SDNY).

Judge Friedrich made headlines last month when she issued an order declaring that Commerce Secretary Wilbur Ross had violated federal recordkeeping laws by using his personal email account to conduct government business, ruling that his nongovernmental emails were therefore subject to FOIA searches. Friedrich, you may remember, was also one of the federal judges who rejected legal challenges of Robert Mueller’s authority.

Circuit Judge Katsas penned an April decision overturning a lower court ruling that cleared the way for the DOJ to resume its execution initiative.

Notably, the three-judge district court designation means that, whatever the decision of the panel, a direct appeal to the conservative majority Supreme Court is in play:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

Read the order below:

DC Appeals Court Census Order by Law&Crime on Scribd

[image via BRENDAN SMIALOWSKI/AFP/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.