Judge Rejects Trump Admin Plea That It Can’t Possibly Explain Its Census Decision By Next Week

WASHINGTON, DC - OCTOBER 21: U.S. Secretary of Commerce Wilbur Ross (Photo by Alex Wong/Getty Images)
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September 10, 2020 11:40 a.m.

U.S. district judge Judge Lucy Koh dismissed the protestations of Trump administration lawyers Thursday morning, insisting that they quickly produce material documenting the administration’s abrupt decision to shorten the census data collection timeline.

“To permit the Court to review the agency’s reasons for acting, the agency must produce an administrative record, which consists of ‘all documents and materials directly or indirectly considered by agency decision-makers’ at the time of the decision,” Koh ordered.

In their Tuesday filing, Department of Justice lawyers complained that amassing the administrative record would take “several weeks” and that they can’t spare Census Bureau employees to pull it together.

Koh made short work of those arguments, though grudgingly allowed for a date range — April 13 to August 3 — to bound the documents the administration must produce. “These custodians can limit their review to documents and materials directly or indirectly considered during these four months,” she said.

But, she made clear that such date restraints are temporary, adding that a schedule for a full administrative record will be agreed upon after the court rules on a preliminary injunction.

“The administrative record cannot be artificially constrained in time,” she said. “If the Replan was informed by the Bureau’s prior planning, then such documents must be included.”

She was also unyielding on her insistence that the administration officials produce the four-month document record quickly, unsympathetic to the lawyers’ argument that it would be weeks of work.

She set a due date of September 13 for Census Bureau Director Steve Dillingham and Secretary of Commerce Wilbur Ross, plus their subordinates, to file “all documents comprising the Replan and its various components for conducting the 2020 Census in a shortened time period, including guidance, directives, and communications regarding same.”

She ordered that similar documents from Census Bureau Associate Director Al Fontenot and his team be filed by September 16.

The case began when a group led by the National Urban League sued administration officials over their decision, in contradiction to guidance from their own experts, to chop the timeline for amassing data on the census from eight months to four.

Koh paused that change with a temporary restraining order last weekend, and Census officials continued to go about their work.

The decision raised particular concern because  it came on the heels on President Donald Trump’s memo to exclude undocumented immigrants from the congressional apportionment base — a huge break with census precedent that usually aims to count everyone in the country, here legally or not. Some worried that the expedited timeline was of a piece with previous administration efforts to muck with the census, which ultimately determines how political power is doled out in the U.S. Expediting the timeline would allow the Trump administration to see the apportionment process through without taking the risk that a new President Joe Biden could take over and reverse the policy.

Read Judge Koh’s order here:

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