Thread by @tomTMwolf

Today's San Jose ruling that Trump can't exclude undocumented people from the #2020Census is smart. And not just because the panel got the issues right. It makes it MUCH harder for the Supreme Court to do the wrong thing and for Trump to worm out. Let's unpack it 🧵@BrennanCenter

https://twitter.com/tomTMwolf/status/1319281455277563911

Context: A panel of judges in New York last month ruled that Trump's plan to exclude undocumented people from the #2020Census numbers used for apportionment was illegal under federal statutory law. That case is now on appeal to SCOTUS, scheduled for argument on Nov. 30.

Plus, a baseline to set real quick: It’s going to be exceedingly difficult for SCOTUS--or any court--to rule that what Trump wants to do is legal. And that's regardless of whether SCOTUS has 8 Justices or 9, or who the swing Justice is. Why?

Today’s California decision makes ultra clear what the New York decision already made crystal clear: Trump’s proposal to exclude undocumented people from the #2020Census numbers used to divvy up seats in Congress is unquestionably ILLEGAL.

Trump's plan is contrary to the plain text of the Constitution. It’s contrary to the plain text of several federal statutes. It’s contrary to a continuous, 230-year history of constitutional and legal understanding, across the Founders, Congress, the courts, and the executive.

Today's resounding and detailed loss for the Trump administration is its second such. That puts an even weightier balance on the plaintiffs’ side in these cases.

But there are a couple of other ways--besides increasing the weight of authority--that today’s San Jose opinion will make it harder for SCOTUS to rule for Trump. And make it harder for Trump to worm out of this.

(1)The San Jose panel has issued a constitutional ruling that the New York court avoided. That makes it harder for the SCOTUS to justify ducking the constitutional issue under the pretense that it should allow the lower courts to decide it in the first instance.

(2) The San Jose panel has also shown the flaws with Trump's attempts to say that individuals, local governments, and non-profit organizations haven't suffered harm beyond a chilling effect on census participation. (The main way Trump is trying to kill off the New York appeal.)

San Jose lays those harms out in detail: lost political power, bad data, lost federal funds, etc. All of which are the logical, inevitable, and foreseeable effects of a chilling effect scaring undocumented people away from getting counted. And the NY panel saw these things, too.

Meanwhile, San Jose has made it harder for Trump to evade any bar on his manipulating the count by trying to alter it in a different way than he initially proposed, for instance, by excluding people in ICE detention facilities. Today's opinion clarifies he can't do that, either.

This opinion and its timing suggest that the San Jose panel was watching the developments in the NY case closely. It does a remarkable job shutting off avenues of escape Trump is trying to open up.

A few more observations for the road: The San Jose panel extracts a price from the administration for arguing in the census timelines lawsuit that it MUST deliver apportionment numbers by Dec. 31.

(Full disclosure: I am co-counsel for plaintiffs in that case.)

And the court very quickly rejects the administration's sources for its (specious) historical arguments as "irrelevant"