Thursday, October 8, 2020

Government Seeks Stay of Census Order at Supreme Court

The Trump Administration yesterday filed a motion at the Supreme Court to stay, pending appeal, a district court's order directing the government to continue census operations until October 31. The filing is just the latest in the ongoing efforts of the Trump Administration to rush census operations amid a pandemic. The Administration says that it needs to speed efforts in order to meet the December 31 statutory deadline for reporting census data to the President.

The case is important, because congressional apportionment, legislative districts, and federal funds are all tied to census data. The numbers that come from the 2020 census will lock these in for the next ten years. Moreover, the Trump Administration seems set on the December 31 deadline so that President Trump (and not a potential President Biden) would certify the census numbers to Congress--and possibly try not to include unauthorized noncitizens in the count.

The case arose when the Trump Administration reversed course on a revised census plan that would extend census data collection through October 31 in light of data-collection delays resulting from Covid-19.

The Census Bureau adopted the plan after it lost 47 days of data-collection efforts, and anticipated additional difficulties in collecting data, due to the Covid-19 pandemic. The plan set the end of collection efforts at October 31, 2020. But this would mean that the Bureau would likely not meet the December 31 statutory deadline for reporting data to the President. 

So on August 3, the Administration abruptly issued a "Replan," which set the end of data-collection efforts at September 30. The Replan condensed the total time to conduct the census to 49.5 weeks--4.5 weeks shy of the pre-Covid schedule of 54 weeks, and 22 weeks shy of the extended Covid schedule. 

A group of organizations, cities, counties, and tribal groups sued to stop the Replan, arguing that it violated the Administrative Procedure Act and the Enumeration Clause. The district court ordered the Replan halted, order data-collection efforts to extend to October 31, and enjoined the Administration from implementing the September 30 and December 31 deadlines. 

The Ninth Circuit denied an administrative stay, and, yesterday, partially stayed the district court's order pending appeal. The Ninth Circuit stayed the district court's order enjoining the Administration from complying with the statutory December 31 deadline--the Ninth Circuit said that a court shouldn't order the government to ignore a statutory deadline--but denied a stay of the order enjoining the September 30 stop date. This meant that the Administration would have to continue census data-collection through October 31.

Soon after the Ninth Circuit ruled, the Administration filed for a stay with the Supreme Court. The Administration argued that the APA didn't apply, that in any event the plaintiffs didn't prove a violation of the APA, and that the Administration couldn't meet the December 31 statutory deadline if data collection extended through October 31.

In other words, the Administration says that it couldn't have been arbitrary and capricious (and therefore in violation of the APA) for the Administration to halt data-collection efforts at an earlier date in order to meet the statutory deadline of December 31.

https://lawprofessors.typepad.com/conlaw/2020/10/government-seeks-stay-of-census-order-at-supreme-court.html

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