For the last hour and 40 minutes, Judge Koh has been presiding over a very contentious hearing the lawsuit challenging the Trump administration's move to truncate the census count...(we're now on a 15 minute break)

Much of the proceeding has been focused on the government's failure to produce by the judge's 9/13 deadline certain documents explaining how the administration came to the decision in early August to speed up the count.

DOJ lawyers have claimed that it was physically impossible to produce the records she requested — and subject them to a privilege review — by the deadline, while signaling that a 9/16 for another set of documents is not going to be met.

But they're also not able to see by when exactly they would be able to produce the requested documents, which has prompted much frustration from the judge

Eventually, Judge Koh turned to a declaration from a top Census official submitted in a separate case, in which the official flagged wildfires, storms, and covid-19 as a risk to finishing data collection by 9/30 (when the count was supposed to end under the expedited plan).

Koh wants to know what happens then. (a reminder she has already put on hold moves by Bureau to wind down the count). She asked for specifics when the parties gather again tomorrow.

DOJ Attorney Brad Rosenberg tried to turn things back to the big picture, and stress that the Census Bureau is in this bind b/c Congress has failed to extend the deadlines for producing the data for the count.

Rosenberg: "Who knows what happens" if the current deadlines for producing the data roll around, and the Bureau hasn't finished its work.

"I don't know what would happen under this circumstance." (His voice was a bit raised by this point.)

Koh didn't seem that persuaded by this framing. She notes that from April-Aug the Bureau was moving forward with an extended timeline even thought Congress hadn't acted on the request to move back the deadlines.

Koh: There are a lot of cases, including SCOTUS case, that allow agency actions to stand even if they violate statutory deadlines.

She called the break were on for the parties to consider her proposal for moving forward: gov takes the time it needs to produce the records, and when it finishes, the challengers have 48 hours to file a response, and 48 hours after that, there's hearing.

This in theory incentivizes gov to move as quickly as possible to produce the records, b/c while this process drags on, her TRO remains in effect preventing it from winding down the count. Quicker the production happens, the quicker she makes a ruling, the quicker gov can appeal

What has gone unmentioned in this hearing is the key event that *could* explain why Trump admin changed course in late July on census count timeline: new Trump apportionment policy excluding undocumented immigrants from count that determines how many House seats each state gets

In other court filings, Trump administration has claimed moves were unrelated. But a top Census Bureau official told the House that through the summer that Bureau believed Senate was on board w/ extensions (House has already approved pushing back timeline)

Yet come late July, when Senate GOP puts out its response to House COVID package (which included extensions), there is no provision pushing back deadlines. Extending the deadlines would mean that if Trump loses in Nov., Biden would be in charge by the time apportionment happened