Thread by @marty_lederman

@LeahLitman @DavidColeACLU @dale_e_ho 1/ The account is devastating and, at the very least, if DOJ lawyers now say "never mind" re: 06/30, they oughta be sanctioned for having *constantly* induced reliance of many courts and litigants about that "deadline." Here's what's truly weird, however:

@LeahLitman @DavidColeACLU @dale_e_ho 2/ AFAICT, in all of those countless representations about the June deadline, DOJ virtually *never* explained to the courts what the source of the deadline was--legal? budgetary? contract? physical impossibility? Nor did it *ever* even bother to cite any sources/authorities, ...

@LeahLitman @DavidColeACLU @dale_e_ho 3/ ... even when the plaintiffs were objecting that 10/31 was the true deadline. The utter absence of any explanation or citation for such an important assertion has been, not to put too fine a point on it, perverse. I could find only one exception--a single citation ...

@LeahLitman @DavidColeACLU @dale_e_ho 4/ ... in one SCOTUS filing to a trial transcript excerpt of plaintiff lawyer Dale Ho's examination of Census Bureau official John Abowd, in which he says:

1. The "final artwork was due at the printers" in June. (According to what? Who knows?)
***

supremecourt.gov/DocketPDF/18/1…

@LeahLitman @DavidColeACLU @dale_e_ho 5/ 2. "Under the current budget [statutory? internal? who knows?], if there are changes to the paper questionnaire after June of 2019, that would impair [impair how? to what extent? who knows?] the Census Bureau’s ability to timely administer the 2020 census."
****

@LeahLitman @DavidColeACLU @dale_e_ho 6/ 3. "With exceptional resources" [from where? of what sort? how easy to obtain?--who knows?], the final date for locking down the content of the census questionnaire is October 31, 2019."

4. Whereas by contrast, changes post-10/31 "might require congressional authorization."

@LeahLitman @DavidColeACLU @dale_e_ho 7/ That's it. Or at least that's all that anybody has ever cited to the courts to explain this "deadline" question. And as you can see, that testimony raises more questions than it answers.

Given the importance to the USG of convincing the courts ...

@LeahLitman @DavidColeACLU @dale_e_ho 8/ ... was a hard deadline, it's truly inexplicable why they thought they could get away with not citing anything or explaining the source and nature of the "deadline."

If they come back now and explain to Judge Furman next Friday that there was always an unstated codicil ...

@LeahLitman @DavidColeACLU @dale_e_ho 9/ ... to all their dire warnings that the census would turn into a pumpkin on 06/30, viz., "except that if we shift around some internal budgeting, we could wait until 10/31" (if that's the case--and again, there's no way of knowing), then they really oughta be sanctioned.

@LeahLitman @DavidColeACLU @dale_e_ho 10/ What about estopped, as the plaintiffs request? I don't know. I suppose it depends on whether one reads the Roberts opinion, affirming Furman's vacatur & remand, as intended to give the USG just three days to possibly issue a new directive w/new rationale (unlikely), or ...

@LeahLitman @DavidColeACLU @dale_e_ho 11/ ... as inviting Ross to do so after the 06/30 deadline. If the latter, why did Roberts have any reason to believe that that was legally/budgetarily/practically even possible, given the paucity of record evidence contradicting the SG's 06/30 hard-deadline representations?

@LeahLitman @DavidColeACLU @dale_e_ho 12/ Who knows? Perhaps Roberts, et al., *didn't* assume anything could happen beyond 06/30.

One thing's for sure: That DOJ filing next week ought to be very, uh, interesting. I wonder how many career FedPrograms attorneys will be willing to sign it.

@LeahLitman @DavidColeACLU @dale_e_ho 13/ @sbagen adds a very important point: This is a *huge* deal for OSG institutionally. Its briefs regularly make factual representations about what the government is doing, can do, etc., and the Court absolutely trusts and depends upon OSG to play it straight on such matters.

@LeahLitman @DavidColeACLU @dale_e_ho @sbagen 14/ If OSG now were to come back and do a full-on Emily Litella and say "Oh, we forgot to mention that the real deadline is 10/31; sorry for the oversight," it'd be (or ought to be, anyway) devastating for the Office--or at least for those who currently run it.

@LeahLitman @DavidColeACLU @dale_e_ho @sbagen 15/ Sorry, meant to include a link to that Abowd testimony -- not that you'll be any clearer on the facts after you read it!

supremecourt.gov/DocketPDF/18/1…

@LeahLitman @DavidColeACLU @dale_e_ho @sbagen 16/ Also, just 16 days ago, just days before the Court was to adjourn, the SG represented that "NYIC’s contention that the forms could be finalized without additional congressional appropriations as late as
October 31 "is unsupported by the record" . . .

@LeahLitman @DavidColeACLU @dale_e_ho @sbagen 17/ . . . and that the "district court thus correctly found that for all practical purposes, 'the Census Bureau needs to finalize the 2020 questionnaire by June of this year.'"

supremecourt.gov/DocketPDF/18/1…

@DavidColeACLU @LeahLitman @dale_e_ho UPDATE:

https://twitter.com/marty_lederman/status/1147555236766244865