A flashing sign near the iconic "Freedom Tower," advises people to fill out their census forms on Monday, Oct. 5, in downtown Miami.

A flashing sign near the iconic "Freedom Tower," advises people to fill out their census forms on Monday, Oct. 5, in downtown Miami. Wilfredo Lee / AP

Appeals Court Rejects Trump Administration's Renewed Efforts to End Census Early

Judges say the administration's argument was "barebones," but Supreme Court fight still possible.

A federal appeals court rejected the Trump administration’s attempt to end the Census Bureau’s decennial count of everyone in the country before Oct. 31, setting up a potential fight before the Supreme Court.

The judges in the U.S. Court of Appeals for the Ninth Circuit avoided throwing a new wrench into a decennial count that has already endured a series of disruptions in the form of deadline changes and a global pandemic. They did grant a stay on part of a lower court’s previously issued injunction, blocking an order that would have required Census to deliver data after its statutory deadline of Dec. 31. 

A federal judge in September blocked the Commerce Department and White House from ending the census on Oct. 1, as it had planned to do since August, while putting an injunction on its effort to turn over apportionment data by the end of the year. Census then announced it would end the count by Oct. 5, but the judge blocked that effort as well. The back and forth created confusion and chaos among the hundreds of thousands of Census employees in the field, who reported receiving divergent messaging that may have conflicted with the court’s order. 

Susan Graber, one of three judges on the appellate court panel that issued its ruling on Wednesday, indicated during oral arguments on Monday that it was not for the court to decide how the Census Bureau should run its operations nor what constitutes an accurate count. 

“There are no specific statutory requirements,” Graber said. “Accuracy is a judgment call. It’s a bit amorphous.”

The court ruled, however, that the new census timetable did in fact represent a “final agency decision” eligible for judicial review under the Administrative Procedure Act, contrary to the primary legal argument the Trump administration presented. The administration mostly ignored its statutory obligation to conduct an accurate count, the court said, and its argument otherwise was “barebones” and “one note.” 

Census officials, Commerce Secretary Wilbur Ross and President Trump have all at various times said it was no longer possible to meet the Dec. 31 deadline to deliver data from the count due to delays already implemented after the novel coronavirus pandemic took hold. Those delays caused Census to develop a new plan in which it would continue counting through Oct. 31 and deliver data in April 2021, but it subsequently changed those deadlines to Sept. 30 and Dec. 31, respectively. Watchdogs such as the Commerce inspector general and the Government Accountability Office have found the truncated timetable risks an incomplete and inaccurate count. The Trump administration has said it must meet its statutory obligation to deliver data by the end of the year.

Meeting the Dec. 31 deadline is a “worthy aspiration,” the court said on Wednesday, but “that deadline does not excuse the failure to address at all other relevant considerations, such as accuracy.” It added Congress still has time to act to change that deadline, or it may reasonably be ignored altogether due to the pandemic’s impact. Either way, the court said—citing Census officials, Commerce Department officials, Trump, the Commerce inspector general, the Census Scientific Advisory Committee and GAO—it is probably too late to deliver the data by the end of the year. 

While the court stayed the injunction against the Dec. 31 deadline, it noted the government still has the option to blow past it. Data processing may continue through April 2021 as Census suggested would occur in its original COVID-19 plan, but the judges said it would be improper for them to require it to do so in violation of current federal law. 

The Trump administration has indicated it would further appeal a decision requiring it to keep the census count going. A Justice Department attorney during the oral arguments requested a quick ruling so, “At least we have some time to go to the Supreme Court and get some relief there.”

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