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Trump administration defends census decisions in 2 courts

Cars were decorated for a census caravan and parade organized by an immigrant advocacy group in California in August.Christian Monterrosa/NYT

Trump administration attorneys were in courts on both coasts Tuesday, fighting over when the 2020 census would end and how the data would be used for deciding how many congressional seats each state gets.

In the nation’s capital, Trump administration attorneys asked a panel of three judges to dismiss a challenge to a memorandum from President Trump seeking to exclude people in the country illegally from being counted in apportionment, the process for deciding how many congressional seats each state gets.

In San Jose, Calif., the Trump administration defended a decision to target ending the 2020 census on Oct. 5, even though a federal judge had cleared the way last week for the head count of every US resident to continue until the end of October.


Tuesday’s virtual court arguments in the District of Columbia were part of the latest hearing over the legality of Trump’s July memorandum. Arguments already have made heard in federal cases in Maryland and New York, where a three-judge panel blocked the presidential order earlier this month, ruling it was unlawful.

The New York judges' order prohibits Commerce Secretary Wilbur Ross, whose agency oversees the US Census Bureau, from excluding people in the country illegally when handing in 2020 census figures used to calculate apportionment. The Trump administration has appealed to the US Supreme Court and asked for the judges' order to be suspended during that process. The judges on Tuesday denied that request.

The New York judges didn’t rule on the constitutionality of the memorandum, merely saying it violated federal laws on the census and apportionment, leaving open the door for the judges in the nation’s capital to rule on other aspects of the president’s memorandum. Other lawsuits challenging the memorandum have been filed in California, Maryland, and Massachusetts.

One of the aspects the judges indicated they may consider is whether the Census Bureau will have to use statistical sampling to determine how many people are in the country illegally since there is no citizenship question on the 2020 census that could help answer that. The Supreme Court has ruled that statistical sampling can’t be used for the apportionment count.


To help figure find out that number, Trump issued another memorandum last year, directing the Census Bureau to use federal and state administrative records to find out the citizenship status of every US resident. The Census Bureau hasn’t yet made public how it will use those records to come up with a method for answering that question.

Under questioning from the federal judges, federal government attorney Sopan Joshi said the Census Bureau had no intention of using statistical sampling.

The Washington lawsuit was brought by a coalition of cities and public interest groups, who argued the president’s order was part of a strategy to enhance the political power of Republicans and non-Hispanic whites. The US House of Representatives later offered its support on behalf of the plaintiffs.

The Trump administration attorneys said the lawsuit was premature since it’s impossible to know who will be affected by the exclusion order before the head count is finished and whether the Census Bureau will come up with a method for figuring out who is a citizen.

But Gregory Diskant, an attorney for one of the plaintiffs, Common Cause, said waiting to challenge the president’s memo until after the apportionment numbers are turned in would create even greater problems. Douglas Letter, the attorney for the US House of Representatives, told the judges that since the nation’s founding all three branches of government have believed that the apportionment count included noncitizens, regardless of whether they were in the country legally.


"It’s just not right for a president to come in and say, without explanation, "I’m changing that,''' Letter said.

The census helps determine how many congressional seats each state gets during apportionment, as well as the distribution of $1.5 trillion in federal spending annually.

In San Jose, US District Judge Lucy Koh last week suspended a Wednesday deadline for ending the 2020 census, allowing the timeline to revert back to an Oct. 31 date for finishing the count. But the commerce secretary on Monday said Oct. 5 would be the targeted date for ending the census.

A hearing on the dispute was scheduled for late Tuesday.