Indeed, many judges found it embarrassing to deal with the matter due to the lack of clarity that the Census Bureau could figure out how many people it would or could exclude from this year’s as-yet-unpublished census.
Shortly before Monday’s session began, Chief Justice John Roberts appeared to be pushing for some delay, despite the fact that the court was urging arguments on the case to be speeded up at the request of the Trump administration. The Justice Department brought the case to the Supreme Court after a three-judge panel in New York issued a ruling in September preventing Commerce Secretary Wilbur Ross from delivering a mandatory census report to Trump in which illegal immigrants were excluded from the census were excluded.
“What’s the problem with litigation after the split?” Asked Roberts. “We don’t know what the secretary is going to do. We don’t know what the president is going to do. We don’t know how many aliens will be excluded. We don’t know how this will affect the division. All of these questions would be resolved, if we wait for the division to take place. “
Much of the argumentation session revolved around technical procedural issues as to whether the lawsuit is premature as the Census Bureau has not yet presented its report to Trump. The arguments also spurred speculation by some judges as to whether the Census Bureau has a feasible way to adequately adjust the populations that Trump is proposing to exclude from existing data.
Some judges also speculated that the number of foreigners the Census Bureau ultimately identifies as potentially affected by expulsion may be so small that it would not have much of an impact on the division of house seats across states.
“I find the handling of this case quite frustrating,” said Judge Samuel Alito. “It could be that we are dealing with an opportunity that is very important. It could be that this is a lot of ado about very little. “
Acting Attorney General Jeff Wall, speaking for the Trump administration, said it was possible that officials were unable to find a reliable way to expel undocumented immigrants who have been in custody over tens of thousands with final deportation orders .
“To my understanding from the Census Bureau, the real prospect is that the numbers won’t affect the split,” Wall said.
However, Wall would not undertake to limit the exclusion to imprisoned immigrants. And Justice Elena Kagan claimed that it was not difficult to identify several million illegal immigrants, including more than 600,000 recipients of deferred measures for child arrivals and over 3 million people in deportation proceedings.
“That sounds pretty doable to me,” said Kagan. “We get to 4 or 5 million people very easily.”
Wall acknowledged that the federal government has such data but said mapping it to census data is complex and in many cases may not be practical.
“The problem is matching,” he said.
The newest Supreme Court Justice, Trump-appointed Amy Coney Barrett, has expressed doubts about the constitutionality of excluding undocumented immigrants from the census.
“Much of the historical evidence and longstanding practice is really having a negative impact on your position,” Barrett told Wall before starting an originalist discussion of the “early days” statements on this point.
The Supreme Court hearing came at a tumultuous time for the Census Bureau, which may not be able to provide the necessary data before Trump leaves office, effectively putting the entire case up for discussion as the president-elect Joe Biden rejects Trump’s efforts.
According to federal law, the president should receive appointment dates by December 31st and report them to the clerk within a week of the convening of the new Congress. However, due to the pandemic, the Census Bureau has not committed itself to meeting this December 31 deadline.
The Presidium initially asked Congress to extend these deadlines by 120 days. Congress never granted the extension, and in early August the Bureau officially announced that it would reverse its request for extension and attempt to provide split data by the end of the year.
This in turn triggered their own lawsuits. A lower court initially ruled that the census must continue before the Supreme Court cleared the way for the Bureau in mid-October to complete the census and move on to the next steps.
Beginning of the month, The New York Times reported that the Census Bureau would not be able to provide allocation data until at least January 26, days after Biden’s inauguration, and possibly much later thereafter.
At that point, the Bureau refused to comment on the Times coverage and referred reporters to a statement by the Director of the Census Bureau, Steve Dillingham, which did not directly address the schedule: “During processing after the collection detected certain processing anomalies. These types of processing anomalies have appeared in previous censuses. I instruct the Census Bureau to use all resources available to resolve this as soon as possible. “
During the oral statements on Monday, however, Wall quickly pointed out that although the Bureau would not be able to provide allocation data by the statutory deadline at the end of the year, some data could be provided in January without specifying a specific schedule.
“The situation is pretty fluid,” said Wall. “We are currently unable to send the report to the President by the statutory deadline at the end of the year. But it wasn’t until this morning that I confirmed with top management from the Department of Commerce and the Census Bureau that we are confident and it remains possible that we will be able to give the President at least some of the data (related to the President’s memorandum) in January. “
In a conference call with reporters after the hearing, ACLU attorney Dale Ho said he was concerned that Trump officials might try to do this, even if career experts at the Census Bureau don’t believe accurate data can be provided before the end of January.
“I think the government has conspicuously failed to admit this,” said Ho, who also argued before the judges on Monday. “I don’t think there are any guarantees that the administration won’t try to screw something up. I wouldn’t beat them to put some numbers in with questionable accuracy.”
Oddly enough, neither the judges nor the lawyers gave a hint during Monday’s arguments against Biden or the fact that Trump is due to step down by Jan. 20. If Trump manages to send the census numbers to the House before he leaves office, it is unclear what happens to the Democratically controlled House and whether Biden, who was appointed to the Justice Department, would defend Trump’s moves.
The Census Bureau had previously refused to meet the December 31 deadline to provide the apportionment data.
“We didn’t say, ‘We’ll meet the December 31st deadline. ‘We said,’ We are working to get as close as possible to the December 31st deadline. ‘ Al Fontenot, associate director at the Census Bureau, told reporters during a call in late October. “It gives us the flexibility, if we encounter unexpected challenges, to address and resolve them before we actually present the documents,” he continued.
Fontenot said at the time that the decision on when to deliver data is made by the office’s career staff.
The legislature was apparently also kept in the dark about when the last minute in the Bureau will regulate when the allocation data will be delivered. The Democratically controlled House Committee on Oversight and Reform asked the Census Bureau for more information about the service after reporting from The Times and others, but said it had received no information.
“Although we asked for documents about these issues and delays last week, we have now been told that Secretary Ross’ attorneys at the Department of Commerce are blocking her release” because of litigation, “Carolyn Maloney (DN.Y.) said in one Statement on Saturday. “Of course, having a separate lawsuit is not a valid basis for withholding documents from Congress.”
The House Oversight and Reform Committee has scheduled a hearing for Thursday.