For all practical purposes, the Supreme Court yesterday allowed the administration to stop the Census count two weeks earlier than the Bureau’s professionals had determined necessary to do the job. It was based on a thin pretext.
The basic facts of the case support the emergency stay. Adam Liptak, reporting for the NYT (“Census Count Can Be Cut Short, Supreme Court Rules“):
The Supreme Court on Tuesday allowed the Trump administration to shut down the census count ahead of schedule, a move that could allow the Census Bureau to submit tabulations excluding unauthorized immigrants by the end of the year.
The court’s brief, unsigned order gave no reasons, which is typical when the court acts on emergency applications. Justice Sonia Sotomayor dissented, saying that “the harms associated with an inaccurate census are avoidable and intolerable.”
[…]
Judge Lucy H. Koh, of the United States District Court in Northern California, ordered the bureau to keep working through the Oct. 31 deadline. “Because the decennial census is at issue here, an inaccurate count would not be remedied for another decade,” she wrote. She also suspended the Dec. 31 statutory deadline for submitting the results.
A three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, turned down a request from the Trump administration to stay Judge Koh’s order and allow it to stop counting before the end of the month. But the panel said it would not bar the administration from trying to comply with the Dec. 31 reporting deadline.
The administration asked the Supreme Court to intervene, saying that only by shutting down field work now could the bureau meet the Dec. 31 deadline, which is set by statute. “The district court’s order constitutes an unprecedented intrusion into the executive’s ability to conduct the census according to Congress’s direction,” Jeffrey B. Wall, the acting solicitor general, told the justices in a brief filed Wednesday.
I’ve purposefully left out some key political facts that we’ll get to shortly. But, on the surface, we have a lowly District Court judge overturning an act of Congress and the lawful order of the President of the United States simply because doing so achieved her preferred policy outcome. That’s not how our system is supposed to work. And the 9th Circuit actually made things worse, keeping the mandate to continue counting through October 30 in place while reinstating the December 31 deadline to complete the computations.
If that were all there were too it, there would be nothing to see here. But Justice Sonia Sotomayor brings in some rather pertinent additional facts in her (unusual for emergency orders) dissent.
The injunction required the Bureau to continue its data collection efforts until October 31, 2020, a deadline the Bureau itself selected in response to the significant operational disruptions caused by the COVID-19 pandemic. The Government now claims that this Court’s immediate intervention is necessary because, absent a stay, the Bureau will not be able to meet the December 31 statutory deadline for reporting census results to the President. This representation is contrary to the Government’s repeated assertions to the courts below that it could not meet the statutory deadline under any circumstances. Moreover, meeting the deadline at the expense of the accuracy of the census is not a cost worth paying, especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress. This Court normally does not grant extraordinary relief on such a painfully disproportionate balance of harms.
So, courts should not be in the business of telling the political branches of government that they have to spend more money. The Constitution is rather clear on where the budgetary power lies and it’s not with the judiciary. Furthermore, following the law of the land is actually a Constitutional obligation of the Executive, which is required to “take care that the laws be faithfully executed.” Whether she thinks this is “a cost worth paying” doesn’t interest me in the slightest.
That said, she has already hinted that “the Government” is lying. They’re using the legal deadline as a pretext for stopping the count two weeks earlier than they had previously agreed was necessary (they had sought to stop it 1 October but weren’t able to because of the injunction) and, furthermore, had represented to the lower court that they wouldn’t be able to meet the deadline regardless.
But, wait. There’s more:
The Bureau also rescheduled its anticipated report to the President. Under the Census Act, the Secretary of Commerce must deliver to the President a report conveying the results of the census by December 31, 2020. 13 U. S. C. §141(b). The Bureau, however, moved this deadline to April 30, 2021. President Trump did not initially object, publicly stating that ” ‘I don’t know that you even have to ask [Congress]. This is called an act of God. This is called a situation that has to be.’ ” _ F. Supp. 3d, at _, 2020 WL 5739144, *37. The Bureau nonetheless requested that Congress formally extend the December 31 statutory deadline by 120 days. The House of Representatives passed a bill extending the deadline, and on July 23, 2020, a Senate Committee held a hearing on the bill.
On August 3, 2020, however, two weeks after President Trump announced his intent to exclude undocumented immigrants from the population base for congressional apportionment, Secretary Ross announced the “Replan Schedule.” Under the Replan Schedule, data collection would end on September 30, 2020. The administration simultaneously stopped pushing Congress to extend the reporting deadline by 120 days.
That there are some shenanigans going on to make it easier for Trump to certify the Census before a new President is inaugurated should raise some red flags. But, within reason, that’s politics.
But notice that the entire pretext under which the stay was granted was the pressure imposed by the December 31 deadline. Congress was about to extend said deadline, at the reasonable request of the Census Bureau, and the administration signaled for them to stop so that they could use the existing deadline as a pretext for halting the count.
Now, I’m more skeptical than some observers, including Koh and Sotomayor, that a difference of two weeks in a counting process that’s been going on for most of the year is going to be all that catastrophic. (Ordinarily, the count is completed by July 31 but it was impeded by the pandemic.) But the transparency of the shenanigans and the blatancy of the misrepresentation to the Supreme Court here should have overturned the presumption of good faith that I ordinarily believe courts should afford the duly elected President in carrying out his duties.
