Thread by @tomTMwolf

❗️BREAKING SCOTUS has announced it will take a wait-and-see approach to Trump’s proposal to manipulate the #2020Census results by excluding undocumented people. In short: Big gamble, wrong on the law, VERY bad policy.

Unpacking this new development in the 🧵👇 @BrennanCenter

The full Exclusion Memorandum Opinion is here: brennancenter.org/sites/default/…

Back in July, President Trump issued a Presidential Memorandum—known as the “Exclusion Memo”--stating that it would now be US policy to exclude undocumented people from the census head count used to divvy up seats in the US House. npr.org/2020/07/21/892…

To set the baseline: The Exclusion Memo is patently illegal. The law is extremely clear on this. The Constitution says we count everyone, without regard for their citizenship status.

Likewise, the federal statutes that govern the census require everyone to be counted, too, without taking their citizenship status into account.

For 230 years, the census has counted everyone, regardless of their citizenship status. Over the course of history, Congress has always rejected attempts to do otherwise. And both Republican and Democratic administrations before now agreed that the census has to count everyone.

So, the Exclusion Memo is not just illegal, but historically unprecedented.

(More on the history from leading census historians here: brennancenter.org/sites/default/…)

(And an annotated guide to all the amicus briefs here: brennancenter.org/our-work/court…)

At oral argument on November 30, Justices up and down the bench seemed to understand that the law wouldn’t let President Trump exclude all undocumented people.

But, instead of blocking the memorandum, the Court took a different tack, fastening on a couple of things to help it avoid ruling on the merits right now.

1.The Memo’s statement that the President would exclude undocumented people “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

2.The DOJ’s repeated statements that the President didn’t yet know if the Bureau would be able to get him the data to exclude anyone, and, if the Bureau could, what set (or subset) of undocumented people, how many, and where

Based on these facts, the Court said that the plaintiffs couldn’t yet show if they’d be harmed by the President executing the Memo and so couldn’t keep pressing their case at this time.

SCOTUS lifted the lower court order that would have blocked the President from executing the Memo and told the plaintiffs they’d have to wait until the President acts before they could challenge the memo again.

That means the President now has the green light to try his hand at manipulating the count, and the Supreme Court—and the other federal courts—can only intervene if he actually does it (or perhaps if he clarifies what he's going to do).

So, basically, SCOTUS gave Trump exactly what he was trying to get out of this appeal.

DOJ didn’t completely give up on trying to defend the Memo on the merits, but their main strategy was to try to open up all sorts of jurisdictional or prudential escape hatches in hopes that the Court would never get into the merits and vacate the court orders blocking the Memo.

SCOTUS, meet escape hatch.

(This seemed like where the case was heading before it was even argued, BTW

https://twitter.com/tomTMwolf/status/1333422086736457728?s=20

)

The SCOTUS opinion doesn’t SAY this, but the Justices seem to be gambling that the Bureau won’t be able to deliver the 2020 Census results to Trump before the end of his term on Jan. 20, then Biden just scraps the memo.
nytimes.com/2020/12/04/us/…

We should all hope that gamble pays off, because, otherwise, this opinion will have just made a bad situation worse.

SCOTUS is giving Trump a lot of leash to manipulate the count for illegitimate ends. It doesn’t matter if Trump excludes all undocumented people or only a subset, like people in immigration detention—citizenship status is NOT a legal basis for excluding people from the count.

Justice Breyer makes this point clearly in his dissent and it's the main reason I say this per curiam opinion is wrong on the law.

But, setting aside questions of legality, let’s step back and look at the bigger picture here: This is no way to run a census.

The administration stood up in front of the Supreme Court roughly a month before the apportionment numbers are due and told the Justices—and everyone in the country—that it still hasn’t decided how it’s actually going to do the census.

Because of the administration’s obfuscations, the country likely won’t know what the numbers are based on until they come out. And when they do, they’ll likely reflect political calculations.

As several former Census Bureau directors have warned, this threatens the public trust. brennancenter.org/sites/default/…

All this obfuscation is designed to help Trump decide who does and doesn’t count, so he can punish his political enemies and benefit his political supporters.

And he wants to do so by seizing upon a legal status that politicians in power can manipulate through legislation or that federal prosecutors could try to leverage the courts to strip.

Basically, Trump is trying to gerrymander the census. Let’s hope he doesn’t get the chance. @BrennanCenter

For more resources on this case, visit @BrennanCenter brennancenter.org/our-work/court…

And for more on the Brennan Center's Census Project: brennancenter.org/issues/gerryma…

And, a reminder, @BrennanCenter @LawyersComm @lathamwatkins and our allies are still challenging plans to rush the census to a close. brennancenter.org/our-work/court…

Our allies in this fight: The relentless coalition of @BrennanCenter @LawyersComm @lathamwatkins @NatUrbanLeague @LWV @BAJItweet @NAACP @CityAttorneyLA @sliccardo @Chicago @CountyofLA @GRIC_Official and the Navajo Nation