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2nd Court Blocks Trump's Push To Alter Census Ahead Of Supreme Court Review

President Trump and U.S. Attorney General William Barr leave after delivering remarks on the 2020 census in the White House Rose Garden in 2019 in Washington, D.C.
Jabin Botsford
The Washington Post via Getty Images
President Trump and U.S. Attorney General William Barr leave after delivering remarks on the 2020 census in the White House Rose Garden in 2019 in Washington, D.C.

Updated Friday at 10:04 a.m. ET

A second federal court has blocked the Trump administration's attempt to make an unprecedented change to who is counted in the census numbers that determine each state's share of seats in Congress.

A three-judge panel — which includes 9th Circuit Judge Richard Clifton, as well as U.S. District Judge Lucy Koh and Judge Edward Chen in Northern California — issued the new court order Thursday.

The decision comes after the U.S. Supreme Court decided to speed up its review of the administration's push. The justices are set to hear arguments Nov. 30 for an appeal of an earlier ruling by a lower court in New York. Last month, that court ruled against a memo issued by President Trump that calls for excluding unauthorized immigrants from the numbers used for reapportioning seats in the House of Representatives, despite the 14th Amendment's requirement to include the "whole number of persons in each state."

The administration is appealing the new ruling out of California to the Supreme Court, according to a court filing released Friday.

The U.S. census numbers used to reallocate House seats have included both citizens and noncitizens, regardless of immigration status, since the first national count in 1790.

"The policy which the Presidential Memorandum attempts to enact has already been rejected by the Constitution, the applicable statutes, and 230 years of history," Clifton, Koh and Chen wrote in their unanimous opinion for the two lawsuits based in California.

The court in New York found the memo to be an illegal overreach of Trump's limited authority that Congress has delegated to the president, who, underfederal law, is required to deliver to lawmakers "a statement showing the whole number of persons in each State" based on the census.

The court in California came to the same conclusion about Trump's memo.

"It seeks to do what Congress has not authorized and what the President does not have the power to do," the judges wrote.

They go further than the narrow ruling for the two lawsuits based in New York, however, by declaring the memo to be not only unlawful, but also unconstitutional, noting that the "prevailing understanding" in Congress for decades has been that excluding noncitizens, including unauthorized immigrants, from the apportionment numbers is not possible under the Constitution.

Clifton, Koh and Chen have also issued a permanent injunction that is broader than the preliminary injunction by the court in New York. Their order blocks the Census Bureau and Commerce Secretary Wilbur Ross, who oversees the bureau, from delivering to the president any report that is part of the decennial census and includes information about unauthorized immigrants in each state.

"There is nothing to keep the President from requesting information from the Secretary, including, we assume, the population by state excluding undocumented immigrants," the judges wrote in their opinion. "But information provided by the Secretary based on whatever sources does not make the data from the decennial census. If it is not, it cannot be used for apportionment."

The Justice Department did not immediately respond to NPR's request for comment.

California Attorney General Xavier Becerra, whose office led one of the lawsuits, said in a statement that the court's decision is "a critical victory for us all."

"A complete, accurate census count is critical for ensuring Californians are heard in Congress — and that we get the resources we need to protect the health and well-being of our communities," Becerra said.

In a separate statement, Rick Bress — a partner with the law firm Latham & Watkins who helped represent plaintiffs in the lawsuit led by the city of San Jose, Calif. — said that the ruling "reinforces" that "regardless of their legal status, the millions of undocumented immigrants who live, work, attend school, and raise their children in our communities are inhabitants of this country and must under the Constitution be counted among 'the whole number of persons in each state.' "

There are four additional lawsuits over Trump's apportionment memo, and federal courts in Washington, D.C., and Maryland may issue their rulings for two of those cases at any moment. The other two cases — one also based in Maryland and the other in Massachusetts — are still in early stages.

It remains unclear exactly how Trump would go about excluding unauthorized immigrants from the apportionment counts if he is ultimately allowed by the courts. With no question about a person's immigration status on the 2020 census forms, the Census Bureau has said it could deliver instead information about unauthorized immigrants in Immigration and Customs Enforcement detention centers.

The bureau continues to be under pressure from the administration to deliver the apportionment counts by the end of this year, as required by federal law, despite top career civil servants warning for months that delays caused by the coronavirus pandemic have made that no longer possible.

Keeping to that Dec. 31 deadline would help ensure that Trump can control the numbers he wants to alter during his current term in office.

During a press briefing on Wednesday, however, the bureau's associate director for the count, Al Fontenot, said that career staff at the agency will decide how long they take to process the census results before delivering them to the president and that they are "working to come as close as possible to the Dec. 31 deadline."

"We have not established a hard stop," Fontenot said. "We are trying to maintain the flexibility to get the job done in a quality way."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.