Yesterday a panel of the 9th Circuit ruled that the Census Bureau must continue counting U.S. residents through 10/31, in order to achieve an accurate count that the pandemic would otherwise prevent. [1]

@hansilowang

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/07/20-16868_order.pdf

Just four hours later, the Acting SG asked the #SCOTUS to stay the injunction. Why the urgency? Nominally because the injunction "prevent[s] the [Commerce] Secretary from reporting [the results] to the POTUS by Dec. 31, 2000, a statutory deadline." [2]

https://www.justsecurity.org/wp-content/uploads/2020/10/20A62.pdf

This is but the latest step in what appears to be an elaborate bait-and-switch that DOJ/DOC have been playing with the courts in this case.

First, DOC represented that the pandemic had *already* precluded the government from meeting the 12/31 deadline, ... [3]

... and therefore the Census Bureau would continue counting until Halloween, rather than the previously announced date of July 31, so that it could satisfy its constitutional and statutory duty to ensure an accurate count. [4]

Later, Secretary Ross cut short the count at Sept. 30. His justification?: that Commerce *could* meet the 12/31 deadline, but only if it had three months to work with after the count ended.

The trial court then ordered that the Bureau must continue counting through 10/31. [5]

At that point, DOC changed its stripes again: It insisted to the courts that *October 5* was the drop-dead date by which the count must end in order for DoC to meet the 12/31 deadline. October 5 was this past Monday. [6]

Yesterday--two days *after* 10/05--the court of appeals ruled that the count must continue through 10/31.

And now the SG insists that the SCOTUS must grant a stay so that DoC can--you guessed it--meet the 12/31 deadline: [7]

"Every passing day," the SG writes, "*exacerbates the serious risk* that the district court’s order to continue field operations and delay post processing will make it impossible for the Bureau to comply with the December 31 statutory reporting deadline.” [8]

How can a further delay "exacerbate" what the government itself has already insisted is not only a "risk" but a *certainty* of missing the 12/31 deadline? Am I missing something, or is the following passage in the brief simply a non sequitur?: [9]

“Because the Bureau’s most recent calculations were that field operations would need to end on October 5 to preserve the Secretary’s ability to meet the statutory [12/31] deadline, an interim administrative stay while this application is pending also is warranted.” [10]

Yet the application was filed with the Court on October 7. The SG thus is asking the SCOTUS to take extraordinary steps to close the barn door ... well, you know. [11]

To be sure, the brief states in passing that "the Bureau is on track to achieve a suitably accurate census count even if it *soon* shifts to post processing." More strikingly still: "It is impossible to predict with certainty precisely when the drop-dead date has passed." [12]

But the SG cites *nothing* in support of these statements. Nor does he explain how they could possibly be consistent with what the Associate Director of the Bureau said in a sworn declaration submitted to the district court: "We wish to be *crystal clear*," he wrote, ... [13]

"... that if the Court were to extend the data collection period past Sept. 30, the Census Bureau would be unable to meet its statutory deadline[] to produce apportionment counts prior to Dec. 31, 2020."

Apparently the clarity of crystal ain't what it used to be. [14]

The Acting SG knows, of course, that the Justices will learn of of the government's constantly (& conveniently) shifting representations of when the carriage turns into a pumpkin. So what explains the motion for a stay?

Hard to say for sure, but here's one speculation: [15]

Perhaps the statutory 12/31 deadline isn't what's driving this at all--that the real deadline Sec. Ross has in mind is January 20, when President Trump might not be sitting in the Oval Office. [16]

Trump, of course, has announced that he plans to exclude undocumented immigrants from the count for purposes of allocating House seats to states in the 2021 reapportionment--which likely would, among other things, strip California of three seats. [17]

I've previously explained why that'd be a patent violation of both the census statute and the Constitution. A three-judge court agreed that it violates the statute, and *that* decision is currently before the SCOTUS on the merits (& on standing). [18]

https://balkin.blogspot.com/2020/07/trumps-memorandum-on-not-counting.html

The ACLU filed a really good brief yesterday explaining why the Court should summarily affirm the court below.

But apart from the merits, if the Census Bureau doesn't get the results to Trump before 01/20, ... [19]

https://www.supremecourt.gov/DocketPDF/20/20-366/157105/20201007161619722_20-366%20Trump%20v%20NY%20Motion%20to%20Dismiss%20or%20Affirm.pdf

... it might well be Joe Biden who'd be making the apportionment calculations--and it's a safe bet that he wouldn't exclude resident immigrants. [20]

It's just a guess, but perhaps that's the real subtext of the SG's new motion: [21]

The repeated invocations of December 31--now a "deadline" in name only, impossible to meet (and, in any event, likely to be extended by Congress when this contretemps ends)--is a red herring. [22]

The real impetus for the urgency in the SG's motion might just be another, far more significant, deadline. [23]