This year, of course, is the year that the every-ten-year national Census is taken, but it has been significantly affected by legal controversy stirred up by the Trump Administration, and that continued this week with two orders by the Supreme Court.
So, as of today, where does the 2020 Census stand, as a result of the Supreme Court’s actions?
First, the Census Bureau declared an end to the time for filing the forms (or telephoning in a response) as of midnight Thursday (actually, midnight Hawaii and 6 p.m. on the East Coast). Thus, the gathering of the count is now over.
That was the direct consequence of an order by the Justices on Tuesday, blocking a lower court order that would have kept the time to file open until October 31. The Court gave no reason, and only one Justice – Sonia Sotomayor – filed a dissenting opinion.
The Census Bureau had told the Court that 99 percent of the counting had already been finished, but that figure is not universally accepted.
Second, the Court on Friday afternoon scheduled a hearing for November 30 on President Trump’s latest maneuver to try to stop the Census from doing something it has always done: including in the national population count everybody living in the nation in 2020, including non-citizen immigrants who live illegally in the U.S. (Both the Constitution and the federal Census Act both specify that the Census is to count the total population.)
The Court indicated in its Friday order that it will consider whether the Trump maneuver violates the federal Census Act (and, possibly, the Constitution itself). A lower federal court struck down, under the Census Act, an order by the President last July to exclude those undocumented immigrants. (Even though the lower court did not rule on the constitutionality of the presidential move, it would be open to the Justices to rule on that, too.)
While the Court did promise at least to consider whether the President acted illegally, it also could issue a decision that did not settle that issue. That’s because the Trump Administration is arguing before the Court that it was premature for anyone to challenge the order excluding the non-citizens. The Court said it will consider that issue, too, at the November hearing. (Twenty-two states and 16 local governments filed the challenge.)
It is unclear how long it would take the Court to issue a ruling on that controversy, but it probably will be aiming for a prompt decision since Census officials have a deadline of December 31 to send the final Census totals to the President.
Neither one of these actions by the Court has any direct effect on the presidential election. Voting is now going on in many states, and the final vote will occur on November 3, and whether or not President Trump loses, he will still be in office when he is to receive the final count from the Census Bureau and passes it on to Congress.
This issue is hugely important to many states and large cities, especially those where undocumented immigrants are concentrated. If many of those were not to be counted, it would affect those states’ allocation of seats in the U.S. House of Representatives, because those 435 seats are divided up by population based directly on the Census totals for each state.
Moreover, states affected by a significant under-count would lose perhaps billions of dollars of federal financial aid, which is distributed on the basis of state-by-state population.
The legal controversy over this year’s Census has been going on since soon after President Trump took office in January 2017. He and his aides have been pursuing a goal long sought by conservative political figures and organizations: excluding undocumented immigrants, based on the claim that they are not a part of the American political community simply because they are not residents. Only people legally in the country, under this theory, are residents who must be counted. There probably are more than 11 million undocumented immigrants in the U.S. now.
This campaign has three times recently engaged the Supreme Court, once in 2019 and twice, this week. The 2019 decision by the Court rejected an attempt by the Trump Administration to put a U.S. citizenship question on the questionnaire going to every American household. That tactic was challenged successfully by states and cities affected who argued that it would discourage Hispanic households from filling out the Census forms out of fear of deportation of those who were undocumented.
This year, the President ordered the Census Bureau to stop earlier than planned the collection of data. That, too, was challenged by those who argued that an early shutdown would mostly affect minorities, since it is generally late in the process when those households get involved.
The Supreme Court’s order on Tuesday, although it came in a preliminary, procedural form, had the real-world effect of stopping the count as of Thursday. The order did not settle the legality of an early shutdown of the count, but that is now largely beside the point.
The hearing now set for November 30 could be far more consequential. The President has said that his administration is firmly committed to the idea that undocumented immigrants are not a part of the nation’s political community, and he is hoping to have that policy validated by the Supreme Court.
It may well be that the Court will be restored to a full membership of nine Justices by the time that hearing is held. The Republican-controlled Senate is expected to give final approval to the President’s new nominee, Circuit Judge Amy Coney Barrett, late this month, to succeed
the late Justice Ruth Bader Ginsburg. When the Court ruled last year against putting a citizenship question on the 2020 Census forms, the vote was 5-to-4. Justice Ginsburg was in the majority. The four dissenting Justices at that time remain on the Court: Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. If the dissenters were to vote for President Trump’s position, and picked up the support of Justice-to-be Barrett, that would make a majority.