Twelve days after the Supreme Court allowed the Trump administration to proceed with a plan to change how census numbers are used to determine congressional representation, the Census Bureau confirmed that it would not meet a key year-end deadline to provide state-by-state population counts to the president. Instead, the bureau indicated on Wednesday, it aims to furnish the numbers “in early 2021.”
Those state population totals, once finalized, are typically used to allocate seats in the House of Representatives. President Donald Trump wants to adjust the totals to exclude people living in the United States illegally from the reapportionment calculation. Opponents sued to block his plan, but the justices ruled on Dec. 18 that the lawsuit was premature.
Although the court left open the door for a future legal challenge, the bureau’s announcement means that, with less than three weeks remaining in Trump’s term, the real threat to Trump’s ability to implement his plan will likely come from the calendar, rather than the courts.
The Constitution requires a census to be conducted every 10 years to determine the population of the United States, which is then used to determine how many seats each state gets in the House of Representatives (and, by extension, how many electoral votes each state will have in future elections). Under federal law, the secretary of commerce must send a report, by Dec. 31, to the president that breaks down the population of each state; this is the deadline that the Census Bureau announced on Wednesday it will not meet.
The next key deadline is Jan. 10, when the president is supposed to send a report to Congress, based on the commerce secretary’s figures, that indicates how many people are living in each state and how many seats in the House each state should receive for the next decade.
In July 2020, Trump issued a memorandum in which he announced that the calculation of the number of House seats for each state would not include people who are living in the United States illegally – a departure from the practice used throughout U.S. history. Instead, Trump instructed Secretary of Commerce Wilbur Ross to provide two sets of population counts for each state: the total population as determined by the 2020 census; and the total population excluding, “to the extent practicable,” unauthorized immigrants.
Trump’s plan to use the second set of numbers as the “base” to divide up seats in the House could cause states with large populations of unauthorized immigrants to lose seats, so the memorandum led to challenges from state and local governments, as well as a group of nonprofits that work with immigrant communities. A special three-judge district court prohibited Ross from including information needed to implement the memorandum in his Dec. 31 report to the president, prompting the Supreme Court to fast-track the Trump administration’s appeal.
At the Nov. 30 oral argument, Acting Solicitor General Jeffrey Wall told the justices that it was still not clear how many unauthorized immigrants the Census Bureau would be able to “identify, let alone how their number and geographic concentration might affect apportionment.” In an unsigned opinion just under three weeks later, the Supreme Court cited that uncertainty in tossing out the case, reasoning that it was “riddled with contingencies and speculation that impede judicial review.” Because there is no way to know yet which unauthorized immigrants would be excluded under the president’s plan, or what the impact of any exclusions might be, the court concluded that the challengers could not yet show any harm from the president’s plan, and it was therefore too soon for the courts to act.
The bureau’s announcement on Wednesday raised the prospect that when all is said and done the courts may not have to act again at all. In a brief press release, the Census Bureau said that the collection of data “is just one part of producing a complete and accurate 2020 Census.” The bureau must also process the data and correct any “issues that could affect the accuracy of the data.” The bureau indicated that it plans to “deliver a complete and accurate state population count for apportionment in early 2021, as close to the statutory deadline as possible,” but it did not say whether that would happen before President-elect Joe Biden takes office at noon on Jan. 20.
This post is also published on SCOTUSblog.