Trump Administration Faces High Volume of Census Litigation

The Trump Administration has been successfully sued (so far) related to its decisions over the summer to not include undocumented persons in the census count and to shorten the door-knocking phase by a month.

In New York v. Trump a three-judge panel ruled that the Secretary of Commerce may not provide the President with a census count that excludes undocumented persons.

The U.S. Constitution requires Congress to conduct an “actual Enumeration” every 10 years. Congress delegated to the Secretary of Commerce to conduct a “decennial census of population.” Federal statute requires the Secretary to report to the President “[t]he tabulation of total population by States under [the decennial census].” The President then must transmit to Congress “a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census.”

President Trump’s July 21, 2020 Presidential Memorandum asks the Secretary of Commerce to provide him two numbers:  the total population as determined in the 2020 census and that same number minus the number of “aliens who are not in a lawful immigration status.” The Memorandum offered no guidance as to how the Secretary of Commerce would count the number of undocumented persons; the 2020 census contains no question about immigration status.

The court described the legal issues in this case as “not particularly close or complicated.” The challengers claim the Memorandum violates federal statutes because it “contemplates calculating apportionment using tabulations other than those produced by the census” and excludes undocumented persons from “persons in” a “State,” as those term are used in federal law. The court agreed on both accounts.

The court concluded federal statutes prevent the Secretary of Commerce from giving the President two numbers. Per the statutes’ “plain terms: The Secretary is required to report a single set of figures to the President — namely, ‘[t]he tabulation of total population by States’ under the ‘decennial census.’’”

The court agreed with the challengers that “persons in each State” could include “inhabitants” or “usual residence.” But, according to the court, “it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded from the phrase.”

The federal government has appealed this case to the Supreme Court. At least six other cases in four other federal district courts have been filed challenging the Presidential Memorandum.

In National Urban League v. Ross a federal district court issued a temporary injunction disallowing the Census Bureau from shortening the door-knocking phase of census data collection from October 31, 2020, to September 30, 2020.

Challengers note that the Supreme Court has held that the Constitution’s Enumeration Clause requires that decisions relating to census-taking “bear a reasonable relationship to the accomplishment of an actual enumeration of the population.” They argue that reducing door-knocking by a month will undermine the Census Bureau’s ability to “ensure a complete and accurate count.”

The federal government points out that federal law requires the Secretary of Commerce to report results to the President before the census year’s end. It argues the Census Bureau had to ending door-knocking early to have sufficient time to process the data it collects.

In issuing a temporary injunction on September 5, the judge stated she didn’t “prejudge” the claims but “merely recognize[d]” that they present “serious questions.” To date, the court has been unable to rule on whether to issue a preliminary injunction because the government failed to produce the record. A preliminary injunction hearing will take place on September 22, 2020.

On September 21, 2020, a federal court in Maryland heard oral argument in another case challenging the shortening of the door-knocking phase of the census.

On September 24 the federal district court issued a preliminary injunction in National Urban League v. Ross disallowing the census door-knocking to end on September 30. The court concluded the challengers were likely to succeed on the merits of their Administrative Procedures Act argument that the decision to end door-knocking early was “arbitrary and capricious.” According to the court, in making this decision the Secretary of Commerce, “failed to consider important aspects of the problem, including their constitutional and statutory obligations to produce an accurate census,” “offered an explanation that runs counter to the evidence before them,” “failed to consider alternatives,” “failed to consider a satisfactory explanation” for ending door-knocking early, and “failed to consider reliance interests.”

Editor’s note: The Trump administration has asked the Supreme Court to freeze the Ninth Circuit decision arguing that there is  “virtually no prospect” the Census Bureau can complete data processing by December 31 if data collection is still taking place until October 31. The other side must respond by Saturday at 10AM.

There is still time to be counted in the 2020 Census. It is safe, important, and easy. You can respond on your own online, by phone (1-844-330-2020), or using the paper form sent to your home (if you still have it). Or, you can speak to a census taker (an enumerator) when he/she comes to your door for a short interview to collect the information.

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.