Policy Summary: On October 13, 2020 the United States Supreme Court issued an order that stayed an order from the 9th U.S. Circuit Court of Appeals that upheld the suspension of the September 30, 2020 deadline for finishing the 2020 census count. And, on October 16, 2020 the Supreme Court announced that it had set for argument on November 30, 2020 to consider whether the census can exclude undocumented immigrants from the overall tally of persons.

Article 1, Section 2 of the U.S. Constitution requires that enumeration of all persons shall be done every ten years which will then determine how congressional Representatives will be apportioned among the several States. However, on July 21, 2020 President Donald J. Trump issued a presidential memorandum that directed the Secretary of Commerce to exclude illegal aliens from being counted for the apportionment base following the 2020 census. In response to this directive multiple lawsuits were filed by a number of plaintiffs asking the court, among other things, to not exclude illegal aliens from the overall census tally and the Commerce Department to not transmit any citizenship or immigration status data to the President for apportionment purposes. The multiple lawsuits were consolidated and at trial Judge Lucy Koh of the United States District Court for the Northern District of California sided with the plaintiffs. She issued an injunction that suspended both the September 30 deadline for finishing the census and the December 31 deadline for reporting the final census tally to the President. A number of groups had advocated for an extension of time to continue with the census count as the process had been upended due to the COVID-19 pandemic. The injunction issued by Judge Koh helped to give more time to conduct a more thorough count as the deadline to report the numbers to the President was pushed back to April 2021.

The government’s argument has been more of a technical argument. The finalization and reporting deadlines are set in federal law. So, the government was merely arguing against an extension because it did not want to agree to an extension and then be accused of not following the law. Only Congress can change the deadlines which wasn’t going to happen.The injunction was appealed to the 9th U.S. Circuit Court of Appeals which upheld the injunction and extension of the reporting deadlines. The case was then appealed to the U.S. Supreme Court which issued an order overturning the trial court injunction. This in effect will allow the Commerce Department to end census operations by the September 30th deadline and report the final census tally by the December 31st deadline. LEARN MORE, LEARN MORE, LEARN MORE

Policy Analysis: The latest orders issued by the Supreme Court are just the latest twist in the ongoing saga of the 2020 decenniel census. The importance of this census is staggeringly high as an accurate tally of the American population and where persons are living in the country will be used to determine how many Congressional Representatives a state will have for the next ten years, how many electoral votes it will have in upcoming presidential elections and how federal monies will be divided and doled out to states to use.

The Supreme Court case that issued the order that permitted the government to cease census operations in order to comply with deadlines to finalize and report and send  the final tally numbers to the president is an erroneous decision. This is because it does not consider that accuracy and thoroughness is much more important than simply complying with the deadlines to report the data. Census operations were disrupted with the COVID-19 pandemic causing delays and even a temporary suspension of field data collection activities. Due to these unforeseen circumstances the Supreme Court should have upheld the injunction issued by the trial court, allowed the collection of information to continue and emphasized that accuracy and thoroughness of census data is preferable over submitting inaccurate and incomplete data just to meet a deadline.

While the Supreme Court’s decision seemed like it would be the last word on the 2020 Census, the Court stepped into the census fray again a few days later by agreeing to hear arguments on whether President Trump can exclude undocumented immigrants from the final 2020 census tally. President Trump’s plan is to collect two tallies – one for everyone in the U.S. and another that would leave out the number of undocumented immigrants in the U.S. He would then report the tally that excludes undocumented immigrants to Congress for apportionment purposes. This plan is completely flawed as it is settled American law that “persons” are to be counted and not just “citizens.” This has been borne out from the historical record as prior debates in Congress considered counting only “citizens” but those proposals were rejected in favor of counting all “persons” regardless of their citizenship. Additionally, since the usage of “persons” is established in Constitutional Amendments, President Trump’s efforts to try to unilaterally decide on his own to only count citizens is a clear violation of the separation of powers principle. Laws are made by Congress and the President can only execute the laws within the boundaries of those laws. President Trump cannot do what Congress has not authorized under law and for President Trump to decide to not count undocumented immigrants for purposes of the 2020 census is in violation of what Congress clearly intended – that all “persons” and not just “citizens” be counted. As it now heads to the highest court for review the Supreme Court should provide clarity on this issue and rein in President Trump’s actions in what look to be an end – around Congressional powers for political purposes. LEARN MORE, LEARN MORE, LEARN MORE 

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

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