Posted Oct 8th 2020 04:48 pm by James Romoser
Another dispute over the 2020 census has reached the Supreme Court, and this time, in an emergency, the judges will decide whether the Trump administration can end the portion of the census early.
The administration says it needs to stop counting people immediately – and move into the complex stage of processing the data collected on the ground to meet a key legal year-end deadline. However, the lower courts have instructed the Ministry of Commerce, which is conducting the census, to continue counting until October 31. The administration filed an urgency motion on Wednesday evening asking the Supreme Court to postpone these orders.
The administration's ability to complete data processing by the end of the year may affect whether it can implement a controversial plan to exclude unauthorized immigrants from the population used to reallocate seats in the House of Representatives. The legality of this plan is the subject of a separate case currently pending in the Supreme Court.
The case, which was received by judges on Wednesday, will determine when the census can cease its field operations – the process of collecting the data necessary to enumerate every person living in the United States. Earlier this year, the Department of Commerce temporarily suspended field operations in response to the coronavirus pandemic, which caused the counting process to lag behind schedule. This is a potential issue as the department faces a legal deadline of December 31st to provide the president with total state-to-state population. These population figures are then used to reallocate the seats in Congress among states.
On August 3, the department announced it would deviate from an earlier schedule and end field operations on September 30, a month earlier than previously planned. Ending field operations early is necessary to give the department enough time to complete extensive data processing and error correction – a phase known as "post-processing" – and to provide accurate tables by December 31st.
A group of nonprofits and local governments went before a California federal court arguing that the division's new schedule would end field operations early and result in an inaccurate census. They said changing the schedule violates the constitution's enumeration clause, which requires population census every 10 years, and federal laws on administrative authorities.
US District Judge Lucy Koh agreed with the challengers. In late September, Koh ordered the department to continue field operations until October 31st – and since that would delay the data processing phase, she also ordered the department not to meet the December 31st deadline for submitting population figures to the president.
The department quickly appealed to the U.S. Court of Appeals for the 9th Circuit. On Wednesday, the appeals court issued a preliminary ruling reversing the part of Koh's order that asked the department not to meet the December 31 deadline. However, the appeals court retained the part of the judge's order that field operations must continue through October 31.
Within hours of the appellate court's decision, the Trump administration petitioned the Supreme Court for emergency assistance. There is "virtually no prospect" that the two-month window of October 31 to December 31 will give the Census Bureau enough time to complete the data processing and meet the legal deadline, Acting Attorney General Jeffrey Wall wrote in the government inquiry. Wall called Koh's order "an unprecedented encroachment on the ability of the executive to conduct the census," and urged the judges to quickly postpone the order and allow the department to cease field operations and immediately move into the data processing phase.
Time is of the essence, Wall continued. "Every day that goes by increases the serious risk that the district court's order to continue field operations and delay follow-up work will make it impossible for the Bureau to meet the December 31 legal reporting deadline," he wrote.
On Thursday morning, Justice Elena Kagan (who handles emergencies in the geographic area including California) ordered nonprofits and local governments to submit a response to the government emergency request by 10:00 a.m. on Saturday.
The timing of the completion of the census is very important not only because of the legal deadline of December 31, but also because of the administration's plan to change the use of the census to reallocate house seats. If President Donald Trump loses the November 3rd election and the government is unable to complete census processing by the end of the year, the new administration could be in control of the population numbers used for reallocation. Trump wants to exclude unauthorized immigrants from that population – a change that could turn political power away from some populous blue states like California and New Jersey.
A three-judge panel banned the government in September from excluding unauthorized immigrants from the total number of reallocations, and the administration appealed the decision to the Supreme Court. The judges ordered an expedited briefing, and the groups that defied the plan submitted briefings on Wednesday.
The two emergency census cases now on trial come 16 months after another high-profile and controversial census battle. Last year, in the Department of Commerce v New York case, the court ruled that the government made bogus and inadequate explanations when trying to add a citizenship question to the census. Shortly after this decision, the ministry abandoned its plan to add the citizenship issue.
The government is seeking an emergency decision that will allow it to end the census early.
SCOTUSblog (October 8, 2020, 4:48 p.m.),