In fact, many of the judiciaries seemed uncomfortable immersing themselves in the issue, while the Census Bureau’s ability to figure out how many people it wanted or could exclude from this year’s unpublished census was deeply unclear.
Near the start of Monday’s hearing, Chief Justice John Roberts urged some delay, despite the court urgently speeding up the case at the request of the Trump government. The Department of Justice took the case to the Supreme Court after a New York three-judge panel issued a decision in September forbidding Secretary of Commerce Wilbur Ross to hand over a mandatory census report to Trump, which omits illegal immigrants from the count.
“What’s the problem with post-division lawsuits?” Roberts asked. – We don’t know what the secretary will do. We do not know what the President will do. We don’t know how many strangers will be expelled. We do not know what effect this will have on the distribution. All of these issues would be resolved if we waited for the distribution to take place. “
Much of the reasoning has raised technical procedural issues as to whether the lawsuit is premature, as the Census Bureau has not yet submitted its report to Trump. The arguments also encouraged speculation by individual judges as to whether the Census Bureau has a viable path to reasonably accommodate the populations that Trump is proposing to exclude existing data.
Some judges have also speculated that the number of foreigners ultimately deemed excluded by the Census Bureau may be so small that it would not have much of an impact on the distribution of places between states.
“I find the posture of this case very frustrating,” Judge Samuel Alito said. “We may be dealing with a very important opportunity. It is possible that it is very clever, very little. “
Acting Attorney General Jeff Wall, who spoke in support of the Trump administration, said it was possible that officials would not be able to reliably guess undocumented immigrants over the tens of thousands in detention with final deportation orders.
“Based on the Census Bureau’s understanding, there are real prospects that the numbers will not affect the distribution,” Wall said.
However, Wall would not commit itself to restricting detained immigrants. And Justice Elena Kagan has said it will not be difficult to identify millions of illegal immigrants, including more than 600,000 deferred measures for those arriving in childhood and more than 3 million people in deportation proceedings.
“That seems pretty feasible to me,” Kagan said. “We get to 4-5 million people very easily.”
Wall acknowledged that the federal government has such data, but said reconciling with census data is complex and in many cases impractical.
“The problem is matching,” he said.
Amy Coney Barrett, the Supreme Court’s most recent judge, Trump’s appointed representative, was among those who expressed doubts about the constitutionality of excluding undocumented immigrants from the census.
“A lot of historical evidence and long-standing practice is really contrary to your position,” Barrett told Wall before embarking on an authenticity-fueled debate about claims from the “founding era”.
The Supreme Court hearing arrived at a chaotic time for the Census Bureau, which may not be able to leave the necessary data before Trump leaves office anyway, raising virtually the entire case as President-elect Joe Biden opposes Trump’s efforts.
According to the federal statute, the president must receive the appointment details by December 31 and report to the clerk of the house within one week of convening the new congress. However, due to the pandemic, the Census Bureau did not undertake to meet this December 31 deadline.
The Bureau originally requested a 120-day extension of Congress in April. Congress never granted the extension, and in early August, the Bureau officially announced that it would withdraw its request for an extension and try to provide the distribution data by the end of the year.
And that triggered his own lawsuits. The lower court originally decided that the census should continue until the Supreme Court cleared the way in mid-October for the Bureau to close the census and move on to the next steps.
Earlier this month, The New York Times reported that the Census Bureau would only be able to provide distribution data until January 26, the days after Biden’s inauguration, and probably only much later.
At the time, the Bureau refused to comment on the Times report and called reporters on a statement by Steven Dillingham, director of the Census Bureau, which did not address the schedule directly: “Certain processing anomalies were discovered during post-collection processing. These types of processing anomalies have occurred in previous censuses. I instruct the Census Bureau to use all available resources to resolve this as quickly as possible. “
But in Monday’s oral argument, Wall quickly indicated that while it looks like the Bureau won’t be able to provide distribution data by the legal year-end deadline, some data could be released in January without a specific schedule.
“The situation is quite fluid,” Wall said. “We are not at the pace at the moment to get the report to the president by the legal deadline at the end of the year. But just this morning, I confirmed with the senior leadership of the Department of Commerce and the Census Bureau that we are optimistic and it is still possible that we can provide the President with at least some of the data on the (Presidential Memorandum) in January. “
During a conference with reporters after the hearing, ACLU attorney Dale Ho said he was concerned that even if Census Bureau career experts didn’t think accurate data could be submitted before the end of January, Trump’s appointees could try to do so.
“I think the government has remarkably refrained from acknowledging this,” said Ho, who also argued before the court on Monday. “I don’t think there are guarantees that the administration wouldn’t try to scam something …. I wouldn’t put them next to them to try to put some numbers with dubious accuracy.”
Interestingly, during Monday’s debates, none of the judges and lawyers made reference to Biden, or that Trump will leave his office by Jan. 20. If Trump manages to send the census numbers to the House before he leaves office, it’s unclear what the Democratic-run house will do with them and whether Biden’s appointees at the Department of Justice will defend Trump’s actions.
The Census Bureau previously refused to undertake to meet the December 31 deadline for providing distribution data.
“We didn’t say ‘we’ll be able to meet the 31 December deadline.’ “We said,‘ We’re working to get as close as possible to the 31 December deadline, ”said Al Fontenot, a Census Bureau staff member, in a conversation with reporters at the end of October.“ It gives us flexibility when faced with unexpected challenges, to handle and manage them before we actually present the documents, ”he continued.
Fontenot said that at the time, the timing of the data transfer would be decided by the Bureau’s career staff.
Legislators were also apparently kept in the dark about the last-minute scramble by the Bureau for when to hand over distribution data. The Democratic-Controlled House Oversight and Reform Commission, following reports from The Times and others, asked the Census Bureau for more information about the delivery, but said it had not received any information.
“Although we asked for documents about these problems and delays last week, we have now learned that Secretary Ross’s attorneys at the Department of Commerce are‘ blocking their release due to litigation concerns, ’” Carolyn Maloney (DN.Y.) observed in a statement on Saturday. “Of course, the existence of separate lawsuits is not an appropriate basis for withholding documents from Congress.”
The Housing and Reform Commission scheduled a hearing on Thursday.