UPDATE, 8:10 p.m.: the Trump administration has already filed an emergency application with Supreme Court, seeking a stay of the Ninth Circuit’s order pending appeal.
Original story below.
The Trump administration is prohibited from ending 2020 Census operations before the end of October, a federal court of appeals ruled on Wednesday. The decision is a substantial blow to the Department of Commerce Secretary Wilbur Ross’s controversial plans to short-circuit the decennial population count.
The three-judge panel was composed entirely of judges appointed by former president Bill Clinton: Susan P. Graber, Marsha S. Berzon and William A. Fletcher.
The 2020 Census has been mired in various controversies since Trump and his political appointees took the reins of the federal government. Notwithstanding most of those concerns, the ongoing novel coronavirus (COVID-19) pandemic threw the already in-progress Census count into disarray in late March of this year.
After a 47-day pause in field operations, officials in the Census Bureau developed a new schedule to account for the weeks lost to COVID-19. The administration determined that the full Census would be in effect for a total of 71.5 weeks–a substantial increase beyond the originally planned 54 weeks of population data collection.
Political bickering ensued and the administration quickly reversed course. Secretary Ross eventually decided to move forth with a new plan that only envisioned keeping the Census count open for a total of 49.5 weeks–even less than the original length of time absent COVID-19 delays. This new schedule would have ceased all Census field operations on September 30, 2020 and would end initial data processing by December 31, 2020. Lawsuits quickly followed.
Lead plaintiffs the National Urban League began litigation and asked the U.S. District Court for the Northern District of California to enjoin the condensed Census schedule–leaving the count open until October 31. The lower court issued a preliminary injunction which barred the Census Bureau from committing to either the September data-gathering or December data-processing date.
The Census Bureau initially ignored that injunction–and went on to advise staff of an altogether new and shorter deadline. The National Urban League complained in a filing asking for the court to simply enforce its own order. The district court then upbraided the agency for failing to abide by the injunction’s implications.
The Ninth Circuit Court of Appeals explains:
On September 28, 2020, the Bureau announced, on Twitter and in a press release, that it would now end data collection on October 5, 2020, which it justified in an internal document as the date adopted “in order to meet apportionment delivery date of December 31, 2020.” The district court subsequently issued an order clarifying the scope of the injunction, explaining that the injunction “‘postpone[s] the effective date of’ th[e] two [condensed] Replan deadlines and so reinstates the administrative rule previously in force: the COVID-19 Plan deadlines of October 31, 2020 for the completion of data collection and April 30, 2021 for reporting the tabulation of total population to the President.” The district court determined that the October 5 deadline violated the injunction…
The Census Bureau eventually complied with the court’s orders but the government appealed and asked for an administrative stay and a stay pending the government’s actual appeal on the merits. The administrative stay request was previously declined. On Wednesday afternoon, the Ninth Circuit declined to issue the second stay.
As a threshold matter, the three-judge panel found that the case bears striking similarities to another case the Commerce Department recently lost in federal court concerning Census activities brought by New York State under the Administrative Procedure Act (APA) of 1946.
“In sum, the government has not made a strong showing that it is likely to prevail on appeal on its primary challenge to the district court’s merits ruling,” the panel determined.
The decision goes on to fault the Census Bureau for abruptly moving away from the COVID-19 schedule after the public was already under the impression that the count would remain open until the end of October.
“The Bureau depends heavily on its own advertising and partnerships with private organizations to drive participation in the census, particularly in hard-to-reach communities,” the court notes. “Toward this end, targeted public advertising was increased under the COVID-19 Plan. Nowhere do the brief [condensed] Replan materials consider that the Bureau and its partners had been relying on and disseminating information based on the October 31 deadline for data collection. Nor did the government address the reliance interest of the public in following the October 31 deadline for self-reporting and for responding to enumerators’ contact efforts, and therefore not filling out a census or responding to a census worker.”
In a minor victory for the White House, the Ninth Circuit did agree to a stay of the district court’s injunction barring the Census Bureau from abiding by the proposed December 31, 2020 data processing timeline. Reasoning that the COVID-19 schedule anticipated an April 2021 deadline only if it is necessary, the appeals court said that it would not prevent the Trump administration from processing the data by the end of the year “if it can do so” or “if it develops another way” to comply with federal law.
Read the full opinion and order below:
[image via Drew Angerer/Getty Images]
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