“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Patrick Bumatay argued in dissent that the court should stay a lower court order that required the government to continue census counting despite improper efforts by the Trump Administration to stop it in the middle of the COVID-19 pandemic. The majority rejected Bumatay’s arguments, denied the requested stay, and upheld the district court order requiring the census to continue in its September 2020 decision in National Urban League v. Ross.
Although the Census Bureau initially supported a longer schedule for counting every person in the census as a result of the coronavirus pandemic, the Trump Administration abruptly shifted the government’s position in July, when it ordered the Bureau to speed up counting and end the census by September 30, a full month earlier than previously scheduled. The National Urban League and others filed suit, and a federal district court granted a preliminary injunction prohibiting the Bureau from stopping collection and related activities on September 30. The government asked for an immediate stay from the Ninth Circuit Court of Appeals.
On September 30, the appellate court denied the stay in a 2-1 vote. As the majority explained, the “hasty and unexplained changes” by the Bureau in the summer risk “undermining the Bureau’s mission” to produce a complete and accurate census count, an issue of “extraordinary importance.” The majority also pointed out that the record showed that staying the injunction, as the government requested, would mean that “[t]housands of census workers” performing crucial field work “will be terminated,” and that restarting the field operations and data collection efforts “would be difficult if not impossible to accomplish in a timely and effective manner.”
Trump judge Bumatay dissented and would have stopped the injunction in its tracks. He claimed that the district court’s preliminary injunction improperly “injected itself” into the census administrative process, and that it is “undisputed” that the plan adopted in the summer was the “only way” the Bureau could meet the current statutory deadline of reporting the results of the census to the President by the end of the year.
The majority explained what was wrong with Bumatay’s dissent. Bumatay applied the “wrong standard” for evaluating a stay request, the majority noted, and “does not grapple” with the serious injury that would be caused if the Bureau’s field work is “dismantled” as a result of the stay. Far from being undisputed, the majority went on, Bumatay’s claim that the Bureau can meet the December 31 deadline only if a stay is issued and its summer plan goes forward is “unsupported” except for one “conclusory statement” that was not in the record, but was instead “prepared for litigation”, which is clearly insufficient as a matter of law.
The litigation about the census is far from over. The Trump Administration may well seek Supreme Court or other review of the court’s decision, just as it has tried to get the Supreme Court to reverse a different court’s ruling that Trump’s effort to exclude undocumented immigrants from the census count is illegal. For now at least, the Trump Administration’s efforts to seriously harm the census in this case have been stopped, despite Trump judge Bumatay’s attempt to allow those efforts to succeed.