Trump Admin. Slams Judge's 'Override' Of Census Deadline

By Jennifer Doherty
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Law360 (October 26, 2020, 5:38 PM EDT) -- The Trump administration told a Ninth Circuit panel Friday that a California federal judge "fundamentally erred" in blocking the U.S. Census Bureau's sped-up rescheduling of the national count, saying District Judge Lucy H. Koh overstepped by seeking to "override" congressionally approved deadlines.

The U.S. Department of Commerce, the bureau's parent agency, wrapped up 2020 census field operations on Oct. 15 after the U.S. Supreme Court blocked Judge Koh's order to continue counting through the end of the month. While the Ninth Circuit mostly upheld the order, the high court allowed the department to end its enumeration efforts while the government appeals.

In its brief, the government painted its drive to speed up census enumeration as nothing more than an effort to comply with the timeline Congress approved before the coronavirus pandemic. Since lawmakers never approved the COVID-19 schedule that Commerce began operating under in April — which pushed the final Census reporting deadline from Dec. 31 to April 30, 2021 — the department said it had no choice but to pick up the pace as the original deadline neared.

The district court "had no authority to require the agencies to flout constitutional congressional directives," the government said, adding that "it cannot review congressional inaction by compelling agencies to disregard the law and by micromanaging internal agency milestones."

Judge Koh's order followed complaints from local and tribal governments, nonprofit organizations and individuals challenging the schedule the government proposed in its August "replan." The replan aimed to restore the final reporting deadline to Dec. 31 and set the end of the count for Sept. 30. The groups challenged the timeline as unconstitutional, arbitrary and capricious, saying it would leave some communities undercounted and cause them to lose funding and representation in Congress.

The government sought to relieve those fears in its Friday brief, saying Commerce had counted 99.9% of households nationwide — including 99.9% of addresses in 49 states and 99.0% in Louisiana — by the time it wound down field operations. It also said the bureau was not bound to achieve a specific level of accuracy by either of the federal statutes governing census operations.

"In short, the Bureau has made every reasonable effort to achieve an accurate census within the time frame imposed by binding, constitutional commands of Congress," the government said.

Besides being justified, the government said its decision to wrap up the census count before the end of October was not a final agency action and therefore not subject to the district court's review under the Administrative Procedures Act. The government chided Judge Koh for meddling in government program operations by ordering the count to continue, equating the move with stepping into an oversight role reserved for Congress.

As further evidence of Judge Koh's "intrusion," the government complained to the circuit court that she had made the district court a "clearinghouse" for complaints from enumerators, forcing the government to use resources responding to irrelevant comments about software glitches, employment concerns and criticism of an interview Secretary of Commerce Wilbur Ross gave.

Its challengers were unlikely to succeed, the government argued, and the public was not harmed by ending the count since Commerce had achieved a count on par with past censuses. However, Judge Koh's order extending the count had harmed the department and threatened not only its deadlines but the White House's ability to deliver its apportionment to Congress.

Representatives for the parties did not immediately respond to requests for comment Monday.

The National Urban League; the League of Women Voters; the Black Alliance for Just Immigration; San Jose, California; King County, Washington; the Navajo Nation; Harris County, Texas and its Commissioners Rodney Ellis and Adrian Garcia are represented by Melissa Arbus Sherry, Sadik Huseny, Steve Bauer, Rick Bress, Anne Robinson, Amit Makker, Shannon D. Lankenau, Tyce R. Walters, Genevieve P. Hoffman, Gemma Donofrio and Christine C. Smith of Latham & Watkins LLP, Kristen Clarke, Jon M. Greenbaum, Ezra D. Rosenberg, Dorian L. Spence, Ajay P. Saini, Maryum Jordan and Pooja Chaudhuri of the Lawyers' Committee for Civil Rights Under Law, and Wendy R. Weiser, Thomas P. Wolf and Kelly M. Percival of the Brennan Center for Justice.

The Navajo Nation is also represented by Doreen McPaul and Jason Searle of the Navajo Nation Department of Justice.

San Jose is also represented by Mark Rosenbaum of Public Counsel.

The Gila River Indian Community is represented by Pratik A. Shah, Z.W. Julius Chen and Merrill C. Godfrey of Akin Gump Strauss Hauer & Feld LLP.

Los Angeles is represented by Michael N. Feuer, Kathleen Kenealy, Danielle Goldstein and Michael Dundas of the city attorney's office.

The County of Los Angeles is represented by David I. Holtzman, Daniel P. Kappes and Jacqueline N. Harvey of Holland & Knight LLP.

Chicago is represented by its own Mark A. Flessner, Benna Ruth Solomon, Stephen J. Kane, Justin A. Houppert and Rebecca Hirsch, and Lily E. Hough and Rafey Sarkis Balabanian of Edelson PC.

Salinas, California, is represented by Christopher A. Callihan and Michael Mutalipassi of the city attorney's office.

The federal government is represented by Jeffrey Bossert Clark, Sopan Joshi, Mark B. Stern and Brad Hinshelwood of the U.S. Department of Justice's Civil Division and by David Anderson of the U.S. Attorney's Office for the Northern District of California.

The case is National Urban League et al. v. Ross et al., case number 20-16868, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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