Trump Admin Suffers Another Setback In Census Gambit, But Still Has Options

US President Donald Trump (C), flanked by US Secretary of Commerce Wilbur Ross (L) and US Attorney General William Barr, delivers remarks on citizenship and the census in the Rose Garden at the White House in Washing... US President Donald Trump (C), flanked by US Secretary of Commerce Wilbur Ross (L) and US Attorney General William Barr, delivers remarks on citizenship and the census in the Rose Garden at the White House in Washington, DC, on July 11, 2019. (Photo by Nicholas Kamm / AFP) (Photo credit should read NICHOLAS KAMM/AFP/Getty Images) MORE LESS
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October 7, 2020 5:28 p.m.

An appeals court left in place on Wednesday a federal judge’s order extending to the end of the month the data collection operations for the 2020 census. But the appellate decision was nonetheless a partial victory for the Trump administration’s efforts to speed up the 2020 count, and leaves the administration plenty of room to continue to monkey around with the process.

The Justice Department has additionally signaled a willingness to go to the Supreme Court if the appeals court did not grant everything the administration was seeking.

The constitutionally mandated decennial census has been rocked by unprecedented chaos, as delays caused by the COVID-19 outbreak have collided with attempts by President Trump to hijack the count for political purposes.

Wednesday’s order from the U.S. Court of Appeals for the 9th Circuit came in a legal challenge to the Trump administration’s efforts to speed up the counting timeline after previously claiming that, because of the pandemic, the Census Bureau needed four extra months to finish the survey.

The appeals court denied the administration’s request to reinstate its plans, under the expedited timeline, to end data collection this week. However, the appeals court has put on hold the district court’s order blocking the Dec. 31 deadline the Census Bureau is facing to produce the 2020 count’s apportionment data, which determines how many House seats each state gets.

The 9th Circuit opinion warned that if the “Bureau meets the December 31 date by using procedures that violate” administrative law or the.Constitution’s mandate for accuracy, then it could be forced to re-do the processing steps that come after the end of data collection. The appeals court also speculated that the bureau might still get the extra time it needs to finish the final phases of the count.

However, the appeals court expressed wariness towards ordering that the Bureau ignore a deadline set by Congress, as the district court had ordered in the case.

“Serious separation of powers concerns arise when a court seeks to override a congressional directive to an Executive Branch agency,” the 9th Circuit said.

The Justice Department claims that the the Trump administration is now seeking to implement the truncated counting timeline because Congress has failed to postpone the statutory deadlines for producing its major data products. Those statutory deadlines include the Dec. 31 date for apportionment data.

However, the administration’s opponents — as well as officials within the Census Bureau — believe that Trump has backed away from efforts to give the count more time for more partisan reasons. The slower counting timeline puts at risk the President’s ability to implement an anti-immigrant apportionment policy he announced in July.

Under the plan the Census Bureau unveiled last spring as the pandemic took hold, data collection — which includes both census self-response and work in the field to count those who don’t respond on their own — was to last through Oct. 31. The bureau would then have five months to process and review that data for the apportionment count (which has how much that phase typically takes) before delivering the apportionment numbers at the end of March, assuming that Congress granted that extension.

But the expedited plan, which was put together and announced in the days after Trump announced the new apportionment policy, ended data collection on Sept. 30, while chopping nearly in half the processing phase, so that the Dec. 31 deadline could be met.

Trump’s new apportionment policy, which faces several legal challenges of its own, seeks to exclude undocumented immigrants from apportionment count.

Giving the Census Bureau until March 31 to produce that data — as it requested because at the beginning of the pandemic — would mean that Trump, if he lost his re-election, would no longer be in office to implement the apportionment policy.

The civil rights groups and local government that are challenging the more recent expedited plan allege it poses serious risks to the count’s accuracy — an assessment that the bureau’s own experts made when presenting the plan to Commerce Secretary Wilbur Ross in August.

Last month, U.S. District Judge Lucy Koh blocked both the Sept. 30 data collection cut-off and the Dec. 31 deadline for the apportionment data. She later found that the administration was in violation of that order when it tried to cut off counting on Oct. 5 in order to stay on track for the Dec. 31 production of data.

The 9th Circuit upheld her order to continue counting through Oct. 31. But, in granting Trump a partial victory, it gave the administration room to find other ways to meet the Dec. 31 deadline.

The administration also has the option of seeking the Supreme Court’s intervention, as Justice Department had previously signaled it was willing to do if the appeals court forced it to continue data collection through the end of the month.

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