Last week, a three-judge panel in Federal District Court in Manhattan rejected President Trump’s order to exclude unauthorized immigrants from population counts that will be used next year to reallocate seats in the House of Representatives, ruling that it was so obviously illegal that a lawsuit challenging the order need not go to a trial. Federal Court Rejects Trump’s Order to Exclude Undocumented From Census:

[The court] said Mr. Trump’s proposal exceeded his authority under federal laws governing the census and reapportionment. The specially convened panel said there was no need to consider a second claim in the lawsuit that the president’s order violated the Constitution’s requirement to base apportionment of the House on “the whole number of persons in each state.”


The court said the president’s order excluding unauthorized immigrants violated the law “in two clear respects.” It said federal law required the production of a single set of state population totals, making two separate counts illegal. Beyond that, the judges wrote, Mr. Trump’s memorandum “violates the statute governing reapportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons’ in a ‘state’ as Congress used those words.”

“The merits of the parties’ dispute are not particularly close or complicated,” the judges wrote in granting summary judgment to the plaintiffs, a view that was broadly shared by legal scholars. Two of the judges, Richard C. Wesley and Peter W. Hall, were named to the bench by President George W. Bush. The third, Jesse M. Furman, was nominated by President Barack Obama.

The case involved lawsuits brought by two sets of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations. The groups argued that Mr. Trump’s order would cause some of them to lose representation in the House and would damage all of them by leading to a less accurate census.

Since the first census was taken in 1790, the number of seats each state holds in the House of Representatives has been based on counts of everyone living in the United States regardless of citizenship or legal status, except for slaves and “Indians not taxed” during the nation’s early years. Former slaves gained citizenship in 1866; all Native Americans did in 1924, although they were counted in regular censuses beginning in 1900.

Mr. Trump tried to scrap that process in July, telling the Commerce Department in a memorandum that the Census Bureau should produce two population counts — one the same as those taken every decade, and the other an estimate of the number of unauthorized immigrants living in each state.

Subtracting the immigrant population from census totals would have excluded millions of people from the population counts used for reapportionment, reducing the number of House seats allotted to states with large immigrant populations like California and Texas [and Arizona]. Those seats would have been redistributed to states with few unauthorized immigrants — in particular Alabama, which is projected to lose a House seat next year.

Excluding noncitizens from reapportionment totals has long been a cause among many Republicans, who traditionally have been seen as the political winners under such a change. Some recent estimates have suggested that Republican gains would be small.

Mr. Trump had cast his order as a blow to “a broader left-wing effort to erode the rights of American citizens.” Given the tiny chance that a court would find his order legal, some analysts concluded that he was making more of an election-year statement to his supporters than a serious effort to upend 230 years of political history.

We are about to find out whether the five conservative activist Justices on the U.S. Supreme Court see this case as clear cut as the Federal District Court in Manhattan. Talking Points Memo reports, Trump Takes His Big Anti-Immigrant Power Grab To The Supreme Court:

The Trump administration on Wednesday moved to have the Supreme Court decide whether undocumented immigrants can be excluded from the apportionment count of the 2020 census.

The latest legal maneuvering comes as part of a major Trump initiative to increase the power of rural white communities that form the Republican Party’s political base at the expense of diverse, immigrant-rich urban areas.

The case centers on a memo President Donald Trump wrote in July to remove undocumented immigrants from the data that determines how many House seats each state will get after the completion of the 2020 census.

Last week, a three-judge panel in New York declared the memo an “unlawful exercise of the authority granted to the President by statute.” The judges also stopped in its tracks Trump’s plan to have Commerce Secretary Wilbur Ross determine a population count minus those undocumented immigrants to use for the new apportionment policy.

The judges found in their ruling that the memo had chilled responses to the census from immigrant communities.

“In short, the record supports a conclusion that the Presidential Memorandum has created, and is likely to create, widespread confusion among illegal aliens and others as to whether they should participate in the census, a confusion which has obvious deleterious effects on their participation rate,” they wrote.

Trump’s memo was a significant break with precedent for the census, which has long sought to include everyone living in the United States. The three-judge panel did not address the constitutional issues at play.

The stakes of the case are high: states like California and Florida would lose a seat after the 2020 census under Trump’s apportionment policy, while whiter states like Alabama and Ohio would keep a seat they otherwise would have lost.

There are also other lawsuits concurrently wending their way through the courts that focus on the administration’s attempt to expedite the census timeline. If the administration is successful in chopping that timeline in half, Trump will be sure he can carry out the apportionment process without it falling into the hands of a Biden administration to reverse.

Federal law enables the administration to skip the appeals court step and bring the apportionment case directly to the Supreme Court, though the Department of Justice lawyers also indicated that they’d be appealing the case to the 2nd Circuit Court of Appeals. Unlike in most cases that seek Supreme Court review, the high court is required to consider this appeal.

In a related legal challenge last week, Judge blocks administration’s ‘winding down’ of census operations:

U.S. District Judge Lucy Koh in the Northern District of California granted a temporary restraining order requested Thursday by plaintiffs who have sued the government over its surprise decision last month to end the count a month earlier than it had planned.

[The] judge ordered the Trump administration to stop winding down census operations until a court hearing later this month over whether the 2020 count should keep going through October.

The order is set to last until a Sept. 17 court hearing over the plaintiffs’ request for counting to continue until Oct. 31, the date the Census Bureau set months ago in response to coronavirus-related delays.

The government had asked Congress for an additional four months to report its data — a delay the House approved in its coronavirus relief bill but the Senate has yet to approve. Census officials said publicly in July that because of the pandemic-related delays, the bureau could no longer deliver a full and accurate count by the constitutionally mandated deadline of Dec. 31.

The modified schedule the bureau had been working with would have meant the data would have been delivered April 30, 2021. But in early August, the government reversed course and said it would keep to the December deadline.

The ruling blocks the government from implementing plans laid out in a leaked Aug. 3 internal document outlining steps the bureau could take to speed up its operations.

In her ruling, Koh said the sole evidence the government submitted in opposition to the request for the restraining order was the Sept. 5 declaration of Albert E. Fontenot Jr., the bureau’s associate director for decennial census programs — a statement that appeared to bolster the arguments of the plaintiffs.

In it, Fontenot said the bureau had already begun terminating some employees, adding, “It is difficult to bring back field staff once we have terminated their employment. Were the Court to enjoin us tomorrow we would be able to keep more staff on board than were the Court to enjoin us on Sept. 29, at which point we will have terminated many more employees.”

Koh said Fontenot’s declaration “underscores Plaintiffs’ claims of irreparable harm.”

Census data is used to determine a decade’s worth of congressional apportionment, federal funding and redistricting. This year’s count has been beset by problems caused by the pandemic, including a delayed timeline and a higher than usual attrition rate among temporary employees hired to complete the count and track down households that don’t self-respond to the survey, including many minorities, immigrants and other ­hard-to-count groups.

“Today’s ruling is a necessary and encouraging first step toward saving the 2020 Census from a massive undercount that will disproportionately affect our country’s communities of color,” said Thomas Wolf, senior counsel and Spitzer Fellow with the Brennan Center’s Democracy Program, which is representing the plaintiffs, which include the National Urban League, the Black Alliance for Just Immigration, the League of Women Voters and jurisdictions in Texas, Washington state and California.

“Today’s ruling buys the census some precious and indispensable time by barring the administration from shutting down the count while the federal courts are still considering our request for relief,” Wolf said.

In a statement, the bureau said it was “obligated to comply with the Court’s Order” and was “taking immediate steps to do so. . . . Enumeration will continue.”

Plaintiffs in this and other census-related cases have accused the administration of seeking to rush and manipulate the census count to give an advantage to Republicans in representation and funding.

Census experts have warned that rushing the collection and processing of the data will result in an inaccurate count.

I will update following the September 17 hearing.