MANHATTAN (CN) — One week after a judge blocked the Trump administration’s attempt to exclude undocumented immigrants from a census count used to divvy up seats in Congress, the government gave notice Wednesday it will appeal.
As it prepares the next leg of the battle, the Department of Justice asked U.S. District Judge Jesse Furman on Thursday to let its policy remain in place. “Even assuming that the Presidential Memorandum is causing some individuals not to participate in the census, preventing the Secretary from providing information to the President in December cannot redress that purported injury occurring now,” a memo filed with the stay motion argues.
President Donald Trump signed the memorandum earlier in the summer to exclude undocumented immigrants from the 2020 census figures used to calculate how many congressional seats each state gets in a process known as apportionment. New York Attorney General Letitia James, along with 19 other states, 10 cities and five counties, filed suit in short order.
Blocking the Trump administration’s edict on statutory grounds last Thursday, a three-judge panel at Southern District of New York called the edict “an unlawful exercise of the authority granted to the president.”
The 86-page opinion unanimously granted summary judgment and enjoins the Department of Commerce and the Bureau of the Census from reporting any information concerning the number of aliens in each state.
But Department of Justice attorney Daniel Mauler said in Thursday’s memo that the District Court “misunderstands both the statutory structure and the history of the census,” which provides broad discretion to the secretary of commerce to utilize administrative records.
By law, the apportionment results must be submitted to the president by December 31 of the census year.
With Congress scheduled to convene on January 3, 2021, the Department of Justice anticipates a January 10, 2021, deadline for Trump to deliver apportionment of the House of Representatives to Congress. “Absent timely relief from the Judgment, Congress’s statutory deadlines will be undermined, because the Secretary and the President will be forced to make reports by those deadlines that do not reflect the President’s policy judgment, and then changes may be necessary afterward if the government subsequently prevails in the Supreme Court,” the memo states.
While the first to receive a ruling, the New York suit was one of a half-dozen brought after Trump issued the July order titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” States, cities, immigrant advocates and civil rights groups are among those challenging the order’s legality and constitutionality.
Critics have contested the memo as a blatant attempt to reduce House seats in Democratic-controlled states with large immigrant communities like California and New York.
The Census Bureau’s website currently pledges that undocumented residents will be included in the apportionment population counts.
“Yes, all people (citizens and noncitizens) with a usual residence in the 50 states are included in the resident population for the census, which means they are all included in the apportionment counts,” the bureau’s frequently asked questions page states.
In cases like the one at hand, federal law allows orders issued by a three-judge panel to skip the federal circuit court stage of the appellate process, expediting such cases directly to the U.S. Supreme Court.