Thursday, October 1, 2020
By Sandra Hong Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday denied a request by the Trump Administration to immediately cease field operations for the 2020 census, determining that to abruptly halt the data-collection process before an extended Oct. 31 deadline would “upend” the status quo.
Judges Johnnie B. Rawlinson and Morgan Christen signed the order. Judge Patrick J. Bumatay wrote a 23-page dissent.
“When considering the request for an administrative stay, our touchstone is the need to preserve the status quo,” the majority said in an eight-page order, concluding:
“Because the status quo would be upended, rather than preserved, if an administrative stay is issued, the government’s request for an immediate administrative stay set forth in Docket Entry No. 4 is denied.”
The U.S. Department of Commerce and U.S. Census Bureau requested the stay following a preliminary injunction issued last week by District Judge Lucy H. Koh of the Northern District of California. Koh’s order enjoins the government from cutting short deadlines by a month for field work and data collection.
The federal government argued the accelerated deadline is essential to report final census findings to the president by Dec. 31.
However, according to the Ninth Circuit order, “the record does not demonstrate that the Bureau’s ability to meet that deadline is affected by the district court’s injunction,” elaborating:
“Rather, the evidence in the administrative record uniformly showed that no matter when field operations end—whether September 30 under the Replan or October 31 under the COVID-19 Plan—the Bureau will be unable to deliver an accurate census by December 31, 2020.”
Census field operations were suspended in March 2020 due to the pandemic, which led to an updated plan in April that anticipated the Dec. 31 final deadline would be impossible to meet.
Yet in August, the bureau announced new updated deadlines that cut off field work on Sept. 30 rather than Oct. 31 and reinstated the final Dec. 31 deadline.
Plaintiffs including the National Urban League, League of Women Voters, the City of Los Angeles County of Los Angeles, and cities in Texas, Washington, and Illinois joined in the suit challenging the government’s action under the Enumeration Clause of the U.S. Constitution—Art. I, §2—and the Administrative Procedure Act.
Koh issued a temporary restraining order on Sept. 5, followed by the preliminary injunction on Sept. 24. Days later, the bureau changed the deadline for field work to end on Oct. 5.
The majority panel noted: “This abrupt change contradicts the government’s argument that the September 30 date is vitally important to the Bureau’s ability to meet its statutory reporting deadline.”
Bumatay said in his dissent:
“A census is required by our Constitution, which provides that the ‘actual Enumeration’ of the population shall be conducted ‘in such Manner as [Congress] shall by Law direct.’…As should be evident from this text, besides requiring that such an enumeration shall occur, the Constitution otherwise vests ‘virtually unlimited discretion’ with Congress….Congress, in turn, has vested substantial discretion with the Secretary of Commerce to determine how to conduct the decennial census….But there’s one aspect that Congress did not delegate: the date for completion of apportionment counts….That deadline is etched in stone: December 31, 2020.”
A stay should have been granted, he said, “because defendants are likely to succeed on the merits,” explaining that that the administration’s decision to speed up the process “—rather than simply ignore a statutory deadline—was not arbitrary and capricious.”
The majority said Bumatay’s dissent included application of the wrong standard for assessing a preliminary administrative stay, which was “definitively resolved” by the court’s 2019 opinion in Doe #1 v. Trump. That opinion said an administrative stay “is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal.”
Yesterday’s majority declared:
“We are not free to depart from that standard.”
Bumatay’s dissent also addressed issues of standing and “unreviewable political questions,” the majority said, observing that these issues were not brought before the panel.
The case is National Urban League v. Ross, 20-16868.
In a decision on Tuesday relating to the census, a three-judge panel of the District Court for the Southern District of New York denied a motion by the Trump Administration for a stay pending an appeal of a decision blocking a directive by the president to exclude undocumented immigrants in the shaping of political apportionment.
On July 21, 2020, the President Donald Trump issued a memo declaring:
“For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act…to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.”
The District Court on Sept. 10 granted summary judgment to the State of New York and other parties contesting the policy, saying the memo was an “ultra vires violation of Congress’s delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers.”
The three-judge panel yesterday described the administration’s argument “frivolous” and said it failed to show the circumstances justified the court’s use of discretion to grant a stay.
“They fail to show that they are likely to succeed on the merits or that a stay would be in the public interest,” the panel declared.
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