Judge Set to Block Trump Plan to Shut Census Down Early

Census worker Jennifer Pope wears a mask and sits by ready to help at a U.S. Census walk-up counting site set up for Hunt County in Greenville, Texas, Friday, July 31, 2020. (AP Photo/LM Otero)

(CN) — A contentious court hearing ended Tuesday with a federal judge loudly urging a Department of Justice lawyer to “just appeal me” when she rules to bar the U.S. Census Bureau from ending its decennial count early. 

U.S. District Judge Lucy Koh of the Northern District of California hectored Justice Department attorney Alexander Sverdlov frequently throughout the 2-hour hearing as Sverdlov seemed more interested in ending the hearing swiftly so the Trump administration can get on with appealing what is all but a foregone conclusion. 

“It seems like the court is inclined to agree with the plaintiffs,” Sverdlov said toward the end of the hearing. “We merely ask that you issue a preliminary injunction so we can ask for appellate relief on a timely basis and as expeditiously as possible.”

It is highly unusual for a party to ask a judge to rule against them quickly so they can move onto the appellate process, but Tuesday’s hearing was a sign of the apparent contempt Trump administration lawyers have for federal judges in California who are often accused of being liberal.

Sverdlov several times declined to answer questions from Koh, saying certain documents and parts of the administrative record “speak for themselves.”

It is highly irregular for any lawyer to allow written materials to speak for them in court. But Sverdlov made an undeniable show of being bored by the hearing in general and the judge’s questions in particular, incurring Koh’s wrath as the hearing progressed. 

She chastised the government’s lawyers for possibly withholding documents, for producing few documents at the last possible second and then filing new declarations mere hours before the hearing. 

“Much like the plaintiffs, I received many of these documents only yesterday,” Koh said. 

The case hinges on whether the U.S. Census Bureau is fulfilling its duty to conduct a once-every-decade head count of every U.S. resident. The outcome of the census count determines how $1.5 trillion in federal spending is allocated along with how many congressional seats are allocated to each state in a process known as apportionment. 

Plaintiffs in the case, which include a coalition of civil rights organizations as well as cities and counties, said the U.S. Census Bureau’s plan to wind down operations by the end of September instead of the end of October was a willful move by the Trump administration to undercount minority communities and thereby skew the allocation of federal funds and congressional seats away from Trump’s political enemies and toward his allies. 

“They say they are committed to an accurate census, but an accurate census is impossible under this timeline,” said attorney Melissa Arbus Sherry, arguing on behalf of the plaintiffs. 

Koh issued a temporary restraining order two weeks ago, sending census takers back into the field to follow up on nonresponses.

The legal question at the heart of the case is whether U.S. Secretary of Commerce Wilbur Ross, who oversees the administration of the census, violated the Administrative Procedure Act when he ordered the count to end a month early. 

Sverdlov said the entire case is moot because the agency has discretion over how it runs its operations, and a decision to truncate the timeline is not a final agency action and therefore not subject to judicial review under the Administrative Procedure Act. 

“Operational plans are not a final agency action,” Sverdlov said. 

The government lawyer put forth a few arguments about how the timeline decision falls short of a reviewable action, but behaved like a lawyer who knew the outcome before the hearing began and was biding his time before having his day in a different court with different judges. 

Sherry said that while Sverdlov dismissed the timeline shortening as mere operational decisions, the decision to truncate the timeline was a final agency action that harmed the bureau’s ability to carry out its constitutionally mandated obligations. 

“This is not just a minor change, but a major change to their schedule,” Sherry said. 

Koh said she would attempt to rule on the preliminary injunction request within the next 48 hours. 

It appears a virtual certainty Koh will grant a preliminary injunction, meaning the bureau will have to continue its count well into October unless she is overruled by the Ninth Circuit.

“There are four out of 50 states that have reached their thresholds,” Koh said at one point in exasperation. “Four out of 50!”

However, it’s all but certain the government will appeal the preliminary injunction and try to get a favorable ruling from the Ninth Circuit. Barring that, the Trump administration could appeal to the Supreme Court where a conservative majority may lend a more sympathetic ear. 

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