As the Supreme Court considered whether Commerce Secretary Wilbur Ross must answer questions in a court case about why he decided to add a citizenship question to the 2020 census, Attorney General Jeff Sessions on Monday publicly attacked the judge who ordered Ross to be deposed, calling his actions "outrageous" even though they've been upheld by three appellate judges.



Sessions's prepared remarks to the conservative Heritage Foundation Monday came in the context of a larger complaint about numerous court decisions that have blocked Trump administration actions, particularly its attempted crackdown on illegal immigration, dreamers and its ban on transgender people serving in the military. He described these judges as engaging in "judicial activism" and "judicial encroachment." Sessions said that the behavior of these judges will make them political actors "subject to the same criticism of other political leaders, and the same calls for their replacement." Federal judges are appointed for life, removable only by impeachment.



The administration has suffered a string of losses in litigation since taking office, starting with judges striking down the first iterations of President Donald Trump's travel ban and continuing with a series of rulings overturning regulatory decisions by the Environmental Protection Agency.



"When a hot-button policy issue ends up in litigation, judges are starting to believe their role is to examine the entire process that led to the policy decision - to redo the entire political debate in their courtrooms," he said. "We have seen it in the litigation over the DACA rescission, the order about service of transgender individuals in the military, and the decision to terminate Temporary Protected Status" for immigrants from Haiti, El Salvador and other countries.



"...Federal district court judges are not empowered to fashion immigration policy, combat climate change, solve the opioid crisis, or run police departments," Sessions said. "The Legislative and Executive branches — of federal and state government — are the constitutionally authorized branches to do these things, and if these branches haven't done so to the satisfaction of an unaccountable judge, it's not because they need judicial expertise or advice."



He saved his harshest words for what he described as the "invasive" inquiries judges are permitting into the decision-making processes of the administration.



"Right now," Sessions said, "we are litigating one case where the district court has authorized a deposition of the Secretary of Commerce about the decision to reinstate a question on the Census. The court believes this is proper because it wants to probe the Secretary's motives," Sessions stated.



"But the Census question - which has appeared in one form or another on the Census for over a hundred years — is either legal or illegal. The words on the page don't have a motive; they are either permitted or they are not. But the judge has decided to hold a trial over the inner-workings of a Cabinet Secretary's mind. This is not the first time we've had to seek emergency appellate intervention to stop outrageous discovery," he said, referring to the pending appeal to the Supreme Court to block Ross's deposition as well as that of John Gore, the acting assistant attorney general for the Justice Department's Civil Rights Division.



Sessions made no mention of the reasons federal Judge Jesse M. Furman in New York, backed by an appeals court, granted a motion by the State of New York and other plaintiffs to have Ross explain the controversial decision. As a panel of the U.S. Court of Appeals for the 2nd Circuit said last week, Furman's order was justified by evidence of "bad faith or improper behavior" by Ross.