SCOTUS Stays Order Requiring Census to Keep Counting

A legally correct ruling based on a lie.

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.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, Voter Suppression
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. drj says:

    Just calling balls and strikes. Nothing to see here.

    Especially not the fact that the minority party is further entrenching its hold on power by having the politicans currently in charge to decide which voters get to be represented in the future.

    In an actual democracy, voters pick the politicians, not the other way around.

    But’s all 100% legal and based on solid precedent, I am sure.

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  2. drj says:

    I should add that a constitutional court’s primary task is to guard the foundational principles of a nation.

    Consciously overlooking an administration’s transparent lies as it attempts to subvert the notion of equal representation strikes me as less than ideal in this regard.

    Looking at this latest ruling, it should be clear (I think) that expanding SCOTUS is much less of a norm violation than the current Court’s deliberate dereliction of duty.

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  3. Scott says:

    Here’s some thoughts:

    Someone will challenge the census on Constitutional grounds. Something to the effect the the constitutionally required census is so inaccurate as to be unconstitutional.

    If it is real bad, there is nothing stopping Congress from redoing the census under a new administration.

    Texas is going to scream bloody murder because they are about to lose the opportunity to gain a seat in the House.

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  4. drj says:

    @Scott:

    If it is real bad, there is nothing stopping Congress from redoing the census under a new administration.

    Article 1, section 2 of the Constitution says once every ten years. So good luck with that.

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  5. MarkedMan says:

    Kudos to you for realizing this was a political decision meant to support their party. But henceforth are we required to go back to the status quo ante, where every decision has to be taken individually and every rationale has to be interpreted with the assumption there is no partisan influence on their reasoning, divorcing it from any other decision they made in the past?

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  6. mattbernius says:

    It’s a great reminder that all Roberts cares about is whether procedures are followed (or there can be a fig leaf showing that). This is also a reminder that Trump and company could have gotten so much further if they had just been more compitent.

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  7. gVOR08 says:

    @mattbernius: But Roberts does, occasionally require at least a fig leaf. Which is why the GOPs’ sponsors are so desperate to get another Federalist Society vote on the court while they still can. There appears to be a split within the FS between the zealots who think they can use “originalism” to destroy Federal regulatory power and social programs right away and gradualists like Roberts who think they should be a little circumspect about crashing precedent.

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  8. Matt says:

    @mattbernius: Yeah I’m kind of horrified at the thought of a competent Trump.. We really dodged the bullet for now.

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  9. James Joyner says:

    @MarkedMan: I don’t think this was “a political decision meant to support their party” so much as, as @mattbernius suggests, deference to the powers of the Executive so long as they provide a legally defensible rationale. I just happen to think the “fig leaf” was so transparent that it shouldn’t have been treated as real.

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  10. MarkedMan says:

    @James Joyner: Got it. So when this “ deference to the powers of the Executive” mysteriously disappears under a Democratic President we will just have to accept that those cases are exceptional.

    For that matter I don’t remember the Republicans on the court showing any deference to the executive when it was Obama. What do you think caused this sudden change of judicial philosophy amongst the Republican members?

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  11. BugManDan says:

    In an article that I can’t find now, the greatest negative impact of the lack of accuracy in the census was going to be on rural counties because they will lose Federal $$. In addition, all the examples that were given were in Republican states. How is this good for the GOP? Even if it makes those in those areas angry at the government (which really means the commie Dems, of course), they could easily lose representatives to reapportionment.

    Even the immigrant question and whether to count them made no sense. I suspect the actual percentage of illegals is higher in small towns and rural areas because those are areas that it is easier to find cash jobs.

    Note: Able to edit after reloading the page.

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  12. Scott F. says:

    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.

    Second only to the emboldening of white supremacist militia terrorists, the Trump administration’s demonstration that the Executive can so blatantly lie and obstruct with impunity is the most destructive outcome of the last 4 years and it will have lasting effects, especially if (as others have noted) the precedent is taken advantage of by more capable hands in the future.

    The whole Checks and Balances premise is thoroughly undermined when one branch can just thumb its nose at the other two branches and there’s no recourse.

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  13. Gustopher says:

    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.

    Even on the surface, that’s not what this is. It is a lowly court mandating that the administration not half-ass their constitutional duty.

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  14. MarkedMan says:

    So, courts should not be in the business of telling the political branches of government that they have to spend more money.

    What does this even mean? It sounds like some kind of Republican talking point invented out of whole cloth just for this occasion. In actual reality, deciding who screwed up and how they are required to fix it is probably 95% of non-criminal court proceedings, and the vast majority of that is explicit rulings on how much must be spent.

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  15. Barry says:

    @drj: ” The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

    *within*

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  16. EddieInCA says:

    It just seems that, once again, Democrats are being asked to play under different rules than Republicans, and Dr Joyner is okay with it.

    Again.

    And again.

    And again.

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  17. MarkedMan says:

    Dr. Joyner: “After careful consideration I believe we have to accept Lucy’s explanation for why she pulled the football away, and I don’t see any reason not to trust her going forward.”

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  18. I think I recall you saying that it would be hard for any Democrat to believe that they would get a fair hearing in front of Brett Kavanaugh after his demonstration during his confirmation hearing.

    Well, this comment section is showing exactly what you expected.

    No, I don’t trust them to be fair, or to consider the greater good. Many Republicans, and more than zero SC justices define “the greater good” as keeping Democrats out of power. You can get back to me when they make a decision that breaks against the electoral interests of Republicans.

    If you don’t stick to your principles when its bad for you personally, you didn’t have any principles to begin with. Lindsay Graham, I’m looking at you.

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  19. MarkedMan says:

    @Jay L Gischer:

    electoral interests of Republicans

    This is the key. Robert’s vote to save Obamacare is often given as an example of going against the Republican agenda, and while that is true enough, it most certainly did not go against the Republican electoral interests. Most thinking Republicans were quite happy to kick that can down the road.

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  20. Just nutha ignint cracker says:

    @EddieInCA: It shouldn’t be surprising. Were Trump to keel over tomorrow from Covid-19, Dr. Joyner would discover that the long nightmare of Trump was over and that Pence would make a fine president. No mystery at all–in his heart, he’s a Republican and only objects to the program to the extent that Trump is at the head of the table.

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  21. Just nutha ignint cracker says:

    Moreover, I’m inclined to be more cynical about the idea that it hasn’t always been as partisan as it is now when I remember that when asked, Eisenhower said that his biggest regret was nominating Earl Warren to the Supreme Court. Conservatives have always been what they are right now. Probably so have liberals and progressives except that they feel a need to try to govern that conservatives seem no longer to share.

    “As it was in the beginning, is now, and shall be forever. Amen.”

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  22. Kylopod says:

    @Just nutha ignint cracker:

    Were Trump to keel over tomorrow from Covid-19, Dr. Joyner would discover that the long nightmare of Trump was over and that Pence would make a fine president.

    I’d be curious to get his view on this instead of speculating about it. If Pence had been at the top of the ticket in 2016, it wouldn’t surprise me if Joyner would have supported him. But a lot of the Never-Trump crowd (if the Lincoln Project ads are to be believed) consider Pence to be complicit at this point.

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