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Trump Admin Will Leapfrog Circuit Court Review, Appeal District Court’s Census Decision Directly to Supreme Court


WASHINGTON, DC - MAY 29: U.S. President Donald Trump speaks during a meeting with industry executives on the reopening of the U.S. economy in the State Dining Room May 29, 2020 in Washington, DC. Trump also answered questions on developments in Minneapolis following the death of George Floyd.

The Trump administration filed a Notice of Appeal on Friday declaring its intention to have the U.S. Supreme Court review a district court decision blocking the president’s order to exclude undocumented immigrants from the census population count data used to allocate federal funds and congressional representation. Because the decision was rendered by a rare three-judge district court panel, the administration doesn’t need to wait for a federal appellate court to weigh in. More importantly, the Supreme Court cannot decline to hear the appeal.

In his July 21 memo, President Donald Trump declared that it was “the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status” and directed Commerce Secretary Wilbur Ross to “take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out th[is] policy.”

complaint, filed two days later by government watchdog group Common Cause, alleged that the memo violated federal statutory law as well as the U.S. Constitution. The group argued that the Fourteenth Amendment unequivocally requires that every resident be counted in the U.S. Census and included in the basis for reapportioning congressional districts. The lawsuit also alleged that Trump’s memo violated the Equal Protection clauses of the Fifth and Fourteenth Amendments diluting certain citizens’ votes and by taking adverse action against residents on the basis of their race, ethnicity, and national origin.

The three-judge panel, two of whom were appointed by George W. Bush, unanimously ruled last week that the president’s order regarding the census was not  “within the boundaries” of the “authority that Congress has granted.”

Because the parties had both consented to have a three-judge panel preside over the case at the district court level pursuant to 28 U.S.C. § 2284, which applies “when an action is filed challenging the constitutionality of the apportionment of congressional districts,” the administration is now uniquely situated in its appeal.

“Unlike most lower-court rulings (which SCOTUS has discretion over whether to review), this is one of the rare ones in which the Court must hear the appeal—because it comes from a ‘three-judge’ district court,” University of Texas law professor Steve Vladeck explained.

28 U.S. Code § 1253 explains on “direct appeals from decisions of three-judge courts”:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

In a memo filed Thursday by the Department of Justice seeking to stay the district court’s order, the administration argued that the ruling misunderstood “both the statutory structure and the history of the census,” contending that the law provides “wide discretion to the secretary of commerce to utilize administrative records” when conducting the census enumeration.

“This significant misunderstanding about how ‘the census’ is conducted and the numbers tallied undermines the justification for issuing injunctive relief,” the memo stated. “This misunderstanding is likely to be corrected during further appellate review, and it further militates in favor of staying the Judgment during that review.”

Experts have resoundingly disagreed with the administration’s position, calling it “insultingly unconstitutional.”

The Supreme Court has already handed the Trump administration a census-related loss.

The notice of appeal is below:

Trump Census SCOTUS Appeal by Law&Crime on Scribd

[image via Erin Schaff-Pool/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.