United States v. 2020-09-30 | 20-16868 | NATIONAL URBAN LEAGUE V. WILBUR ROSS | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATIONAL URBAN LEAGUE; LEAGUE
OF
WOMEN VOTERS; BLACK
ALLIANCE FOR JUST IMMIGRATION;
HARRIS COUNTY, Texas; KING
COUNTY, Washington; CITY OF LOS
ANGELES, California; CITY OF
SALINAS, California; CITY OF SAN
JOSE, California; RODNEY ELLIS;
ADRIAN GARCIA; NAVAJO NATION;
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE; CITY OF CHICAGO, Illinois;
C
OUNTY OF LOS ANGELES,
California; GILA RIVER INDIAN
COMMUNITY,
Plaintiffs-Appellees,

v.

W
ILBUR L. ROSS, in his official
capacity as Secretary of Commerce;
U
NITED STATES DEPARTMENT OF
COMMERCE; STEVEN DILLINGHAM, in
his official capacity as Director of
the U.S. Census Bureau; U
NITED
STATES CENSUS BUREAU,
Defendants-Appellants,

and
No. 20-16868

D.C. No.
5:20-cv-05799-
LHK

ORDER

2 NAT’L URBAN LEAGUE V. ROSS

STATE OF LOUISIANA; STATE OF
MISSISSIPPI,
Intervenor-Defendants.

Filed September 30, 2020

Before: Johnnie B. Rawlinson, Morgan Christen, and
Patrick J. Bumatay, Circuit Judges.

Order;
Dissent by Judge Bumatay

SUMMARY
*

Administrative Stay / Census

The panel denied the government’s request for an
administrative stay in an action brought by various Cities,
organizations and individuals (“Appellees”) challenging an
August 3, 2020 decision by the United States Census Bureau
adopting a census plan (“Replan”) to dramatically advance
critical deadlines for conducting the 2020 census.

The Census Bureau adopted a new census plan in April
2020 to accommodate the delays caused by COVID-19,
which extended the deadline for each step in the census
process. On August 3, 2020, the Census Bureau announced

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

NAT’L URBAN LEAGUE V. ROSS 3

its adoption of the Replan, which accelerated the COVID-19
Plan’s deadline for completion of field work and data
collection from October 31, 2020 to September 30, 2020.

Appellees challenged the Replan pursuant to the
Enumeration Clause of the U.S. Constitution and the
Administrative Procedure Act. The district court entered a
preliminary injunction staying the Replan’s schedule for
completion of census field operations and for reporting the
census results to the President, and enjoining the government
from implementing these deadlines. The government
requested an immediate administrative stay of the district
court’s injunction.

The panel held on the facts of this case that the status quo
would be seriously disrupted, rather than preserved, by an
immediate administrative stay of the district court’s order.
The panel held that the district court’s September 5, 2020
temporary restraining order and September 24, 2020
preliminary injunction preserved the status quo because they
maintained the Census Bureau’s data-collection apparatus
pending resolution of the appeal. Granting an administrative
stay risked rendering the plaintiffs’ challenge to the Replan
effectively moot. The panel further held that the
administrative record compellingly supported the district
court’s conclusion that moving the October 31 deadline to
September 30 would not allow the Census Bureau to
complete the census by the December 31, 2020 statutory
deadline.

The panel noted that the dissent made four errors. First,
the dissent applied the wrong standard for a preliminary
administrative stay. Second, as a consequence of this
threshold error, the dissent failed to grapple with the
consequences of the Census Bureau dismantling the

4 NAT’L URBAN LEAGUE V. ROSS

apparatus for conducting field work before the motion for a
stay pending appeal could be decided. Third, the dissent
hinged on the unsupported premise that the Census Bureau
could meet the December 31 deadline if an administrative
stay was issued. Fourth, the dissent addressed several issues
that were not properly before the panel at the administrative
stay stage.

Judge Bumatay dissented. Because the district court was
without authority to issue its injunction, the government is
likely to succeed on the merits, and the government will be
irreparably harmed without relief, he would grant the request
for an administrative stay. The Census Bureau adopted the
COVID-19 Plan on April 13, 2020 on the assumption that
Congress would extend the statutory deadlines by 120 days;
and when Congress did not act, the Census Bureau adopted
the Replan schedule. Judge Bumatay would hold that there
was no basis for the judiciary to inject itself into this
sensitive political controversy and seize for itself the
decision to reevaluate the compelling concerns between
accuracy and speed, after the elected branches have
apparently done so already. At a minimum, the panel should
have granted an administrative stay while the court further
considered the underlying motion to stay the injunction
pending appeal.

COUNSEL

Jeffrey Bossert Clark, Acting Assistant Attorney General;
Sopan Joshi, Senior Counsel to the Assistant Attorney
General; Mark B. Stern and Brad Hinshelwood, Appellate
Staff; Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.

NAT’L URBAN LEAGUE V. ROSS 5

Melissa Arbus Sherry, Richard P. Bress, Anne W. Robinson,
Tyce R. Walters, Genevieve P. Hoffman, and Gemma
Donofrio, Latham & Watkins LLP, Washington, D.C.; Sadik
Huseny, Steven M. Bauer, Amit Makker, and Shannon D.
Lankenau, Latham & Watkins LLP, San Francisco,
California; Kristen Clarke, Jon M. Greenbaum, Ezra D.
Rosenberg, Dorian L. Spence, Maryum Jordan, Ajay Saini,
and Pooja Chaudhuri, Lawyers’ Committee for Civil Rights
Under Law, Washington, D.C.; Wendy R. Weiser, Thomas
P. Wolf, and Kelly M. Percival, Brennan Center for Justice,
New York, New York; Mark Rosenbaum, Public Counsel,
Los Angeles, California; Doreen McPaul, Attorney General;
Jason Searle, Attorney; Navajo Nation Department of
Justice, Window Rock, Arizona; Michael N. Feuer, City
Attorney; Kathleen Kenealy, Chief Assistant City Attorney;
Danielle Goldstein and Michael Dundas, Deputy City
Attorneys; Office of the City Attorney, Los Angeles,
California; Christopher A. Callihan, City Attorney; Michael
Mutalipassi, Assistant City Attorney; City Attorney’s
Office, Salinas, California; Rafey S. Balabanian and Lily E.
Hough, Edelson P.C., San Francisco, California; Mark A.
Flessner, Corporation Counsel; Justin A. Houppert, Senior
Assistant Corporation Counsel; Benna Ruth Solomon and
Stephen J. Kane, Deputy Corporation Counsel; and Rebecca
Hirsch, Assistant Corporation Counsel; Office of the
Corporation Counsel, Chicago, Illinois; Pratik A. Shah,
Z.W. Julius Chen, and Merrill C. Godfrey, Akin Gump
Strauss Hauer & Feld LLP, Washington, D.C.; David I.
Holtzman, Daniel P. Kappes, and Jacqueline N. Harvey,
Holland & Knight LLP, San Francisco, California; for
Plaintiffs-Appellees.

Jeff Landry, Attorney General; Elizabeth B. Murrill,
Solicitor General; Louisiana Department of Justice, Baton
Rouge, Louisiana; Lynn Fitch, Attorney General; Krissy C.

6 NAT’L URBAN LEAGUE V. ROSS

Nobile, Deputy Solicitor General; Office of the Attorney
General; Jackson, Missouri; for Amici Curiae States of
Louisiana and Mississippi.

James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Marcelo Quiñones, Lead Deputy
County Counsel; Raphael N. Rajendra and Karun Tilak,
Deputy County Counsel; Office of the County Counsel,
County of Santa Clara, San Jose, California; for Amici
Curiae County of Santa Clara and 18 Additional Local
Governments.

ORDER
On August 3, 2020, the United States Census Bureau
(Bureau) adopted a census plan (Replan) that dramatically
advanced critical deadlines for conducting the 2020 census.
Appellees challenged this action pursuant to the
Enumeration Clause of the United States Constitution and
the Administrative Procedure Act (APA). On September 24,
2020, the district court entered a preliminary injunction
staying the Replan’s schedule for completion of census field
operations and for reporting the census results to the
President and enjoining the government from implementing
these deadlines. The government has filed an emergency
motion to stay the preliminary injunction pending appeal,
and a request for an immediate administrative stay pending
resolution of the stay motion. In this order, we consider only
the request for an administrative stay.
The decennial census is an enormous and complex
nationwide operation. It requires nearly a decade of
planning and hundreds of thousands of dedicated workers to
accomplish. In 2018, after years of planning and testing, the

NAT’L URBAN LEAGUE V. ROSS 7

Bureau adopted a plan to complete the 2020 census. The
plan called for an extraordinary effort on the part of the
government including hiring 340,000–500,000 field staff.
For reasons stated in the record, the district court found that
due to significant challenges encountered in the wake of
COVID-19, the Bureau suspended field operations in March
2020. When operations resumed, the Bureau was unable to
recruit sufficient numbers of field staff. In July 2020, the
Bureau estimated that it only retained 38% of the field staff
required to complete an accurate and timely census.
As a result of these serious challenges, the district court
found that as early as April 2020, the Bureau, the
Department of Commerce, and even the President had all
publicly acknowledged that the December 31 deadline was
no longer attainable. The Bureau adopted a new census plan
in April to accommodate the delays caused by COVID-19
(“COVID-19 Plan”). The COVID-19 plan extended the
deadline for each step in the process and contemplated that
the Bureau would ask Congress for a 120-day extension of
the December 31, 2020 delivery deadline for the completed
census report. The Bureau’s work proceeded according to
the COVID-19 Plan until August 2020.
In early August, a “senior Department [of Commerce]
official” directed the Bureau to change course and prepare a
new plan for completing the census by the December 31,
2020 statutory deadline. Senior Bureau staff were given just
four to five days to develop this “Replan.” On August 3,
2020, the Bureau announced its adoption of the Replan, and
its central feature: accelerating the COVID-19 Plan’s
deadline for the completion of field work and data collection
from October 31 to September 30. On September 24, the
district court entered a preliminary injunction preventing the
Bureau from implementing the September 30 deadline to

8 NAT’L URBAN LEAGUE V. ROSS

stop field work and data collection. The government
requests an immediate administrative stay of the district
court’s injunction.
I
The government has filed a single emergency motion
seeking a stay pending appeal, and also seeking an
administrative stay pending resolution of the motion for stay
pending appeal. We recently established that an
administrative stay “is only intended to preserve the status
quo until the substantive motion for a stay pending appeal
can be considered on the merits, and does not constitute in
any way a decision as to the merits of the motion for stay
pending appeal.” Doe v. Trump, 944 F.3d 1222, 1223 (9th
Cir. 2019). Based on our preliminary review of the record,
we conclude that the status quo would be seriously disrupted
by an immediate stay of the district court’s order.
As explained above, until August of this year, the Bureau
had been operating for several months under the COVID-19
plan. That plan represented a revised schedule to account
for the challenges caused by the COVID-19 pandemic. It
included extended deadlines based on the understanding that
the Bureau would need additional time to complete the
necessary field work and data processing to produce an
accurate census report. The district court’s September 5
temporary restraining order and September 24 preliminary
injunction preserve the status quo because they maintain the
Bureau’s data-collection apparatus pending resolution of the
appeal. By the time the district court entered its order, the
Bureau had already begun winding down its field operations
and terminating census field workers in anticipation of the
Replan’s accelerated September 30 deadline. The process of
disbanding thousands of census workers will resume if an
administrative stay is put in place, eliminating the Bureau’s

NAT’L URBAN LEAGUE V. ROSS 9

ability to conduct field work. Accordingly, on the facts of
this case, staying the preliminary injunction would upend the
status quo, not preserve it.
We are mindful of the potential harms faced by both
parties. Here, not only would the status quo be upended by
an administrative stay, the Bureau’s ability to resume field
operations would be left in serious doubt. Thousands of
census workers currently performing field work will be
terminated, and restarting these field operations and data
collection efforts, which took years of planning and hiring
efforts to put in place, would be difficult if not impossible to
accomplish in a timely and effective manner. Granting the
administrative stay thus risks rendering the plaintiff’s
challenge to the Replan effectively moot.
We also recognize that missing the December 31
statutory deadline risks serious harm to the government.
However, the record does not demonstrate that the Bureau’s
ability to meet that deadline is affected by the district court’s
injunction. Rather, the evidence in the administrative record
uniformly showed that no matter when field operations
end—whether September 30 under the Replan or October 31
under the COVID-19 Plan—the Bureau will be unable to
deliver an accurate census by December 31, 2020. The
President, senior Bureau officials, senior Department of
Commerce officials, the Office of Inspector General, the
Census Scientific Advisory Committee, and the Government
Accountability Office have all stated that delivering a census
by December 31 without compromising accuracy is
practically impossible, and has been for some time. As the
district court recognized, after the Bureau realized the
pandemic would prevent it from adhering to its original
schedule, the Bureau made two requests to Congress: first, it
requested the December 31 deadline be extended to April

10 NAT’L URBAN LEAGUE V. ROSS

2021. When no final congressional action had been taken on
that request in July, the Bureau requested $443 million to
cover the additional cost to complete the census by year’s
end. Contrary to the dissent’s repeated assertion, the only
undisputed fact in this sequence was that Congress has not
given the Bureau the extension or the additional funding it
needs to meet the statutory deadline.
The government did not counter the Appellees’ showing
on this point. Citing the chorus of statements made by the
Bureau and other officials, the district court found that the
Bureau could not meet the December 31 deadline. Indeed,
despite the government’s persistent argument in the district
court and before our court that the September 30 deadline for
terminating field operations is essential to meeting its
December 31 statutory deadline, the administrative record
compellingly supports the district court’s conclusion that
moving the October 31 deadline to September 30 will not
allow the Bureau to complete the census on time.
Finally, we note that notwithstanding the pendency of
the government’s emergency request for an immediate
administrative stay to allow the Replan’s September 30
deadline to take effect, on September 28 the government
again changed the deadline for completing field work. The
government informed us in a September 28, 2020 letter,
without explanation, that it now intends to end field
operations on October 5, 2020. This abrupt change
contradicts the government’s argument that the September
30 date is vitally important to the Bureau’s ability to meet its
statutory reporting deadline. Our dissenting colleague cites
a September 28 estimate suggesting that the census is 98%
complete. This is still below the enumeration rate required
by the Bureau’s internal standards for generating an accurate
census report. Further, the district court ruled on September

NAT’L URBAN LEAGUE V. ROSS 11

24 and found, as of that date, the Bureau had met its standard
in only four states.
Given the extraordinary importance of the census, it is
imperative that the Bureau conduct the census in a manner
that is most likely to produce a workable report in which the
public can have confidence. The Bureau must account for
its competing constitutional and statutory obligation to
produce a fair and accurate census report. The hasty and
unexplained changes to the Bureau’s operations contained in
the Replan, created in just 4 to 5 days, risks undermining the
Bureau’s mission.
Our dissenting colleague makes four errors. First, the
dissent applies the wrong standard for a preliminary
administrative stay. In Doe #1 v. Trump, our circuit
definitively resolved which standard applies to
administrative stay motions. We are not free to depart from
that standard. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003) (en banc) (holding that a three-judge panel may not
overrule a prior decision of the court). Citing the dissent
from Doe #1 v. Trump, our colleague applies the factors used
when we consider a motion for stay pending appeal. This
analysis erroneously collapses the distinct legal analyses for
an administrative stay and a motion for stay pending appeal.
When considering the request for an administrative stay, our
touchstone is the need to preserve the status quo. We defer
weighing the Nken
1
factors until the motion for stay pending
appeal is considered. See Doe #1, 944 F.3d at 1223.
Second, as a consequence of its threshold error, the
dissent does not grapple with the factor that drives the
outcome of the government’s motion: the Bureau’s

1
Nken v. Holder, 556 U.S. 418, 426 (2009).

12 NAT’L URBAN LEAGUE V. ROSS

apparatus for conducting field work will be dismantled
before the motion for stay pending appeal can be decided.
The dissent does not dispute that issuing an administrative
stay in this case would return the Bureau to the process of
dismantling its data-collection infrastructure and terminating
its field staff.
Third, although we need not wade into the underlying
merits of the issues on appeal, we would be remiss if we did
not note that the dissent hinges on the unsupported premise
that the Bureau can meet the December 31 deadline if an
administrative stay is issued. The dissent’s assumption that
the agency can still meet its deadline relies entirely upon one
conclusory statement that was not in the administrative
record but was instead prepared for litigation. Dep’t of
Homeland Sec. v. Regents of the Univ. of California, 140 S.
Ct. 1891, 1908 (2020) (explaining that an agency’s post hoc
rationalizations “must be viewed critically”); Arrington v.
Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008) (rejecting a
justification for agency action that “is entirely absent from
the administrative record”). Given the consistent picture
painted by the administrative record, it is not surprising the
district court was unpersuaded by this sole conclusory
statement.
Fourth, the dissent addresses several issues that are not
properly before us at the administrative stay stage. The
government’s emergency motion does not contest the district
court’s conclusion that Appellees have standing to bring
their claims. Nor does the emergency motion challenge the
district court’s conclusion that the Bureau’s decision to
adopt the Replan is an unreviewable political question.
Thus, those issues are not properly before us and we do not
reach them.

NAT’L URBAN LEAGUE V. ROSS 13

Because the status quo would be upended, rather than
preserved, if an administrative stay is issued, the
government’s request for an immediate administrative stay
set forth in Docket Entry No. 4 is denied.
Appellees’ response to the emergency motion is due
October 2, 2020. Appellants’ optional reply is due by
October 3, 2020.

BUMATAY, Circuit Judge, dissenting:
COVID-19 has wreaked an undeniable toll on the
Nation. The virus has already stolen too many American
lives. Even more have been hospitalized or fallen ill. And
nearly every American’s plans this year have been roiled by
the virus. But it cannot roil the law. Contorting the
Administrative Procedure Act, and liberating itself from any
semblance of judicial restraint, the district court injected
itself into a sensitive and politically fraught arena: the 2020
census. After the Department of Commerce adopted a plan
to address census delays from the COVID-19 pandemic,
plaintiffs brought suit under the APA. Upon reviewing the
internal deliberative emails of the agencies, the district court
decided that it knows better than the Secretary of Commerce.
Based on internal discussions about the agency’s ability to
complete the census in a timely and accurate fashion, the
district court essentially overruled the Secretary’s decision
to adopt the revised plan. But it is undisputed that this new
plan was the only way to meet the statutory obligation to
report the census results to the President by December 31,
2020. No matter for an adventurous district court: it simply
cast aside the statutory deadline as part of its injunction.

14 NAT’L URBAN LEAGUE V. ROSS

Because the district court was without authority to issue
its injunction, the defendants are likely to succeed on the
merits, and they will be irreparably harmed without relief, I
would have granted the request for an administrative stay.
Accordingly, I respectfully dissent.
I.
A census is required by our Constitution, which provides
that the “actual Enumeration” of the population shall be
conducted “in such Manner as [Congress] shall by Law
direct.” U.S. Const. Art. I, § 2, cl. 3. As should be evident
from this text, besides requiring that such an enumeration
shall occur, the Constitution otherwise vests “virtually
unlimited discretion” with Congress. Wisconsin v. City of
New York, 517 U.S. 1, 19 (1996); see also Baldrige v.
Shapiro, 455 U.S. 345, 361 (1982) (recognizing Congress’s
broad discretion over the census). Congress, in turn, has
vested substantial discretion with the Secretary of
Commerce to determine how to conduct the decennial
census. See 13 U.S.C. § 141(a); Wisconsin, 517 U.S. at 19
(“Through the Census Act, Congress has delegated its broad
authority over the census to the Secretary.”). But there’s one
aspect that Congress did not delegate: the date for
completion of apportionment counts. 13 U.S.C. § 141(b).
That deadline is etched in stone: December 31, 2020.
1
And

1
Congress has provided for other deadlines as well. For example,
the Census Bureau must “take a decennial census of the population”
starting on April 1, 2020, and report the results to the President by
December 31, 2020 (the deadline primarily at issue in this case). See
13 U.S.C. § 141(a)–(b). After receiving this report, the President must
calculate “the number of Representatives to which each State would be
entitled” and transmit that information to Congress by January 10, 2021.
See 2 U.S.C. § 2a(a). Finally, the Bureau must report a tabulation of

NAT’L URBAN LEAGUE V. ROSS 15

there’s one branch Congress has not delegated any census
decisions to: the judiciary.
Cognizant of its statutory deadlines—but unaware of the
looming health crisis—the Census Bureau adopted a final
operational plan for the 2020 Census in December 2018.
This plan has two major phases: a data-collection phase and
a data-processing phase. During the data-collection phase,
field employees follow up at non-responding addresses and
collect other crucial information. Only after this phase is
complete can the Bureau begin processing the collected data
to report to the President by the December 31 deadline.
But even the best laid plans can go awry. Just as the data
collection phase was set to begin, the COVID-19 pandemic
struck, forcing the Bureau to suspend its field operations for
four weeks. To resume those operations, the Bureau adopted
the COVID-19 Plan on April 13, 2020, which set new
deadlines for the data collection and dating processing
phases, on the assumption that Congress would extend the
statutory deadlines by 120 days. Congress did not act,
however, so the Bureau adopted the “Replan” schedule,
which outlined expedited deadlines designed “to accelerate
the completion of data collection [] by our statutory deadline
of December 31, 2020, as required by law[.]” According to
the Bureau, it was able to meet this compressed timeframe
by (1) offering financial incentives to increase the number of
hours each enumerator worked and achieve the “same work
hours as would have been done under the original time
frame”; and (2) taking advantage of updated software and
processing capabilities not available during the 2010 Census
in order to maximize enumerator effectiveness. An

population for redistricting to the states by March 31, 2021. See
13 U.S.C. § 141(c).

16 NAT’L URBAN LEAGUE V. ROSS

Associate Director at the Bureau attests that the agency “is
confident that it can achieve a complete and accurate census
and report apportionment counts by the statutory deadline
following the Replan Schedule.” (emphasis added).
2
Under
this plan, field operations would conclude by September 30,
and data processing would begin on October 1. The Bureau
asserts that it must complete the data collection phase by
September 30 and turn to the data processing phase by
October 1 to meet its December 31, 2020 deadline. See
Motion at 1. On September 28, 2020, the Bureau extended
its internal deadline slightly: setting October 5, 2020 as the
target date for concluding field operations.
3
As of
September 28, 2020, the Bureau reports over 98%
enumeration nationwide.
4

II.
Whether to grant a request for a stay is governed by the
familiar four-factor test: “(1) whether the stay applicant has
made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Doe #1

2
Inexplicably, the majority’s decision simply ignores this attestation
when claiming that even under the Replan, “the Bureau will be unable to
deliver an accurate census by December 31, 2020.” Majority Op. at 9.
3
United States Census Bureau, 2020 Census Update,
https://www.census.gov/newsroom/press-releases/2020/2020-census-
update.html.
4
United States Census 2020, Total Response Rates by State,
https://2020census.gov/en/response-rates/nrfu.html.

NAT’L URBAN LEAGUE V. ROSS 17

v. Trump, 944 F.3d 1222, 1225 (9th Cir. 2019) (Bress, J.,
dissenting) (simplified).
5

We should have granted an administrative stay here
because defendants are likely to succeed on the merits. The
Secretary’s decision to adopt the Replan—rather than simply
ignore a statutory deadline—was not arbitrary and
capricious. At bottom, the district court’s APA analysis
seems to turn on the court’s apparent disagreement with
whether the census will be sufficiently accurate under the
Replan. But the accuracy of the census is likely a
nonjusticiable political question; a properly deferential
review would find the Replan satisfies statutory and
constitutional requirements; and the plaintiffs here do not
appear to have standing because their alleged injuries are not
redressable. I discuss each flaw with the district court’s
injunction in turn.
A.
Putting aside momentarily the fact that the crux of this
case is not justiciable, see, infra, § II-B and II-C, and
assuming that the APA applies here and that the Replan can
be considered a “final agency action,” cf. NAACP v. Bureau
of the Census, 945 F.3d 183, 189 (4th Cir. 2019) (challenges

5
The majority suggests that I apply the “wrong standard for a
preliminary administrative stay.” Majority Op. at 11. But as Judge Bress
has already persuasively explained: “the instant request for a temporary
stay is part of the request for a stay pending appeal, and the Court cites
no authority for why the usual stay factors—including likelihood of
success on the merits—would not apply.” Doe #1, 944 F.3d at 1226
(Bress, J., dissenting). We can’t simply ignore the fact that the
government is likely to prevail on the merits here. That’s particularly
true where, like here, the parties have addressed the merits in the request
for a stay and the opposition thereto. See id.

18 NAT’L URBAN LEAGUE V. ROSS

to 2020 census “design choices” were not final agency
actions under the APA), the Replan does not violate the
APA.
Under the APA, agencies must engage in “reasoned
decisionmaking.” Michigan v. EPA, 576 U.S. 743, 750
(2015). Where census decisions are concerned, this only
requires the Secretary to “examine the relevant data and
articulate a satisfactory explanation for his decision.”
Department of Commerce v. New York, 139 S. Ct. 2551,
2569 (2019). “We may not substitute our judgment for that
of the Secretary.” Id. Nor may we “subordinat[e] the
Secretary’s policymaking discretion to the Bureau’s
technocratic expertise.” Id. at 2571 (Bureau staff’s
conclusions are not “touchstones of substantive
reasonableness.”); accord Wisconsin, 517 U.S. at 23
(Because it is the Secretary “to whom Congress has
delegated its constitutional authority over the census,” “the
mere fact that the Secretary’s decision overruled the views
of some of his subordinates is by itself of no moment in any
judicial review of his decision.”).
To make reasoned decisions, agencies must consider
“significant alternatives.” Mt. Diablo Hosp. v. Shalala,
3 F.3d 1226, 1232 (9th Cir. 1993). The defendants did so.
As a Bureau Associate Director explained, the Bureau
“considered a variety of options and evaluated risks” in
crafting the Replan, ultimately “select[ing] those that we
believed presented the best combination of changes to allow
us to meet the statutory deadline without compromising
quality to an undue degree.” Although the Replan
compressed several steps, which might “increase the risk” of
errors, the Associate Director explained that efficiencies new
to the 2020 Census nevertheless allowed the Replan to
“achieve a complete and accurate census.”

NAT’L URBAN LEAGUE V. ROSS 19

The core of the district court’s reasoning is that the
Secretary erred in considering the deadline fixed and then
trying to maximize accuracy within that constraint. The
court thought the Secretary should have been more flexible
and considered other alternatives. But all of the alternatives
would require the Bureau to consciously blow a statutory
deadline. For example, the district court suggests the
defendants could have considered “not adopting the Replan
while striving in good faith to meet statutory deadlines.” Or,
as the plaintiffs put it, “Defendants could have continued to
operate under the COVID-19 Plan while striving to meet
statutory deadlines.” But the COVID-19 Plan was premised
on Congress extending the statutory deadlines. By adhering
to that plan despite Congress’s inaction, the defendants
would necessarily not be striving in good faith to meet the
deadline; they would be consciously abandoning it.
6
“An
agency is under no obligation to consider every possible
alternative to a proposed action, nor must it consider
alternatives that are unlikely to be implemented or those
inconsistent with its basic policy objectives.” Seattle
Audubon Soc’y v. Moseley, 80 F.3d 1401, 1404 (9th Cir.
1996). Thus, a fortriori, an agency need not consider
alternatives that violate the law. The Bureau cannot be liable
for failing to consider an alternative that would undisputedly
violate the clear deadline set by Congress to obtain marginal
improvements (of some unknown degree) to the census.
The district court also erred in determining that the
Secretary’s reason for adopting the Replan ran contrary to
the facts. The district court noted that some Bureau
employees thought it would be impossible to accurately

6
This same core defect infects the other proposed alternatives, such
as making “good faith efforts to meet the deadline” short of adopting the
Replan and “balanc[ing]” accuracy and timeliness concerns.

20 NAT’L URBAN LEAGUE V. ROSS

complete the census by December 31, given the COVID-19
delays.
7
But each statement relied on was made before the
Replan, which the Bureau’s Associate Director has attested
will reach sufficient levels of accuracy. In any event, “there
is nothing even unusual” about a Cabinet secretary
“disagreeing with staff, or cutting through red tape.” New
York, 139 S. Ct. at 2580 (Thomas J., concurring in part and
dissenting in part). The Secretary is owed “wide discretion”
in this arena because “it is he to whom Congress has
delegated its constitutional authority over the census.”
Wisconsin, 517 U.S. at 22; see 13 U.S.C. § 141(a). Dissent
from inferior employees at the Bureau cannot constitute
“facts” that the Secretary’s decision runs “contrary” to. See
Wisconsin, 517 U.S. at 23 (“[T]he mere fact that the
Secretary’s decision overruled the views of some of his
subordinates is by itself of no moment in any judicial review
of his decision.”). To hold otherwise would impermissibly
“subordinat[e] the Secretary’s policymaking discretion to
the Bureau’s technocratic expertise.” New York, 139 S. Ct.
at 2571.

7
The court also suggests that the Commerce Department pressured
the Bureau to cease seeking an extension of the deadline, though nothing
in the record before this panel suggests this is so, and the district court’s
citations show only that the Bureau did not affirmatively request an
extension in certain instances. Even if that were true though, it cannot
undermine the Bureau’s stated reason that it adopted the Replan because
it realized Congress would not extend the deadline. See New York,
139 S. Ct. at 2576 (2019) (Thomas J., concurring in part and dissenting
in part) (courts defer to executive agency and it is entitled to a
presumption of regularity in part because crediting accusations of
pretext, which can be easily lodged by “political opponents of executive
actions to generate controversy,” could “lead judicial review of
administrative proceedings to devolve into an endless morass of
discovery and policy disputes”).

NAT’L URBAN LEAGUE V. ROSS 21

Finally, the district court concluded that the defendants
“failed to sufficiently consider” their obligations to produce
an accurate census because “the Replan will decrease the
census’s accuracy and undercount historically undercounted
individuals.” But the need to consider accuracy does not
give courts license to act as a super Census Bureau. The
Secretary is “required to consider the evidence and give
reasons for his chosen course of action,” but “[i]t is not for
us to ask whether [the] decision was ‘the best one possible’
or even whether it was ‘better than the alternatives.’” New
York, 139 S. Ct. at 2571 (citation omitted). The Bureau
fulfilled the deliberative requirement by considering the
Replan’s impact on accuracy. See Providence v. Yakima
Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010)
(Agency action is arbitrary and capricious where the agency
“entirely failed” to consider an important aspect of the
problem.) (emphasis added).
B.
Although the district court ostensibly conducted APA
review of the procedures the Secretary used to adopt the
Replan, the crux of the court’s decision is its view that the
Replan would not produce an accurate census. But the
“accuracy” requirement is a general duty arising from the
Census Act, not a specific statutory or constitutional
mandate. See New York, 139 S. Ct. at 2568–69 (“[B]y
mandating a population count that will be used to apportion
representatives, see [13 U.S.C.] § 141(b), 2 U. S. C. § 2a, the
Act imposes a duty to conduct a census that is accurate and
that fairly accounts for the crucial representational rights that
depend on the census and the apportionment.”) (simplified).
And it is for the Secretary, under the authority Congress
delegated to him, to balance the need for accuracy against
the statute’s hard deadline.

22 NAT’L URBAN LEAGUE V. ROSS

Although justiciability arguments are only raised briefly
on the pending motion for a stay, “federal courts have an
independent obligation to ensure that they do not exceed the
scope of their jurisdiction, and therefore they must raise and
decide jurisdictional questions that the parties either
overlook or elect not to press.” Henderson ex rel. Henderson
v. Shinseki, 562 U.S. 428, 434 (2011). Deciding whether the
census meets a free-floating concept of “accuracy” is exactly
the type of political question that courts are powerless to
adjudicate. Virtually all of the factors announced in Baker
v. Carr, 369 U.S. 186 (1962), support a finding of this being
a nonjusticiable political question.
8
Principally, the district
court’s “accuracy” requirement is not amenable to
“judicially discoverable and manageable standards.” See id.
at 217. How accurate is accurate enough? See, e.g.,
Department of Commerce v. United States House of
Representatives, 525 U.S. 316, 322 (1999) (“[T]he Bureau
has always failed to reach—and has thus failed to count—a
portion of the population.”).
9
And what standard are courts

8
These factors include: a textual commitment of the issue to a
coordinate political branch, a lack of judicially discoverable and
manageable standards for resolving it, the impossibility of deciding
without an initial policy determination of the kind clearly for nonjudicial
discretion, or the impossibility of a court’s undertaking independent
resolution of the question without expressing a lack of respect due
coordinate branches of government. Baker, 369 U.S. at 217.
9
See also Wisconsin, 517 U.S. at 6 (“[Various] errors have resulted
in a net ‘undercount’ of the actual American population in every
decennial census.”); Karcher v. Daggett, 462 U.S. 725, 732 (1983)
(recognizing that “census data are not perfect,” and that “population
counts for particular localities are outdated long before they are
completed”); Gaffney v. Cummings, 412 U.S. 735, 745 (1973)
(remarking that census data “are inherently less than absolutely
accurate”); accord C. Wright, History and Growth of the United States
Census 16–17 (1900) (noting that the accuracy of our first census in 1790

NAT’L URBAN LEAGUE V. ROSS 23

to use when evaluating accuracy anyway? Neither the
district court nor this panel offer any answers.
But the answer is actually quite simple: it would be
impossible for us to decide this case “without an initial
policy determination of the kind clearly for nonjudicial
discretion.” See Carr, 369 U.S. at 217. Even under ordinary
circumstances, the Secretary and Bureau must juggle many
important considerations when designing the census plan.
For example, in choosing the date for when to end its data-
collection phase and begin its data-processing phase, the
defendants must consider the trade-offs between terminating
field operations (even though not everyone has been
counted) against the time needed to process the data into the
Secretary’s report to the President and the States. See
2 U.S.C. § 2a(a); 13 U.S.C. § 141(c); see also NAACP,
945 F.3d at 191 (“‘Setting aside’ one or more of these
‘choices’ necessarily would impact the efficacy of the
others, and inevitably would lead to court involvement in
‘hands-on’ management of the Census Bureau’s
operations.”). With each decision, the Bureau must consider
(and choose among) the various tradeoffs each option
presents. By requiring the Bureau to prioritize an elusive
standard of accuracy over and above the interest in
completing the census in a timely manner, as prescribed by
Congress, the court substitutes its own policy determination
for those set by Congress and delegated to the Secretary.
Analogous cases have held similar claims to be
nonjusticiable political questions. Just last year the Court
held that trying to decide among “different visions of
fairness” for districting maps is an “unmoored determination

was seriously questioned by the man who oversaw its implementation as
Secretary of State, Thomas Jefferson).

24 NAT’L URBAN LEAGUE V. ROSS

of the sort characteristic of a political question beyond the
competence of the federal courts.” Rucho v. Common
Cause, 139 S. Ct. 2484, 2499–2500 (2019) (internal
quotations omitted); accord Nixon v. United States, 506 U.S.
224 (1993) (constitutional provision granting the “the sole
Power to try all Impeachments” does not “provide an
identifiable textual limit on the authority which is committed
to the Senate”). So too here: determining the “accuracy” of
the census is no more of a judicial question than determining
the “fairness” of districting maps.
10

To be sure, courts may entertain some challenges to
census-related decisions. But cases treating such challenges
as justiciable involved narrow and deferential review—not a
freewheeling inquisition into the “accuracy” of the census.
In Department of Commerce v. New York, for example, the
Court considered whether the Secretary could add a
citizenship question to the census consistent with the
Enumeration Clause and Census Act. 139 S. Ct. at 2566,
2569. On the constitutional challenge, the Court reviewed
only for whether the addition of the challenged question bore
a “reasonable relationship to the accomplishment of an
actual enumeration.” Id. at 2566. On the statutory question,

10
Nor does the fact that plaintiffs brought their claims under the
APA change the political question analysis. See 5 U.S.C. § 702
(“Nothing herein . . . affects other limitations on judicial review or the
power or duty of the court to dismiss any action or deny relief on any
other appropriate legal or equitable ground[.]”); Int’l Refugee Assistance
Project v. Trump, 883 F.3d 233, 366 (4th Cir. 2018) (Niemeyer, J.,
dissenting) (“§ 702(1)’s recognition of ‘other limitations’ on the scope
of APA review reflects Congress’s intent to maintain longstanding
prudential limits confining the judiciary to its proper role in our
constitutional system, such as the political question doctrine.”); Mobarez
v. Kerry, 187 F. Supp. 3d 85, 92 (D.D.C. 2016) (holding that political
question doctrine precluded review of APA claims).

NAT’L URBAN LEAGUE V. ROSS 25

the Court deferentially considered “whether the Secretary
examined the relevant data and articulated a satisfactory
explanation for his decision.” Id. at 2569. The Court’s other
census cases likewise involved this type of narrow and
deferential review. See Wisconsin, 517 U.S. at 19–20 (“[S]o
long as the Secretary’s conduct of the census is consistent
with the constitutional language and the constitutional goal
of equal representation, it is within the limits of the
Constitution.”) (simplified); Franklin v. Massachusetts,
505 U.S. 788, 801 (1992) (similar); see also U.S. Dep’t of
Commerce v. Montana, 503 U.S. 442, 458–59 (1992) (“The
polestar of equal representation does not provide sufficient
guidance to allow us to discern a single constitutionally
permissible course” among multiple options.).
When our review morphs beyond these precedents into
an interrogation of “accuracy,” of the type underlying the
district court’s APA analysis here, we are beyond our proper
role as judges. Some legal questions—even ones arising
under the same constitutional provision as previously
justiciable questions—might prove to be nonjusticiable. See
New York v. United States, 505 U.S. 144, 185 (1992) (“[T]he
Court has suggested that perhaps not all claims under the
Guarantee Clause present nonjusticiable political questions”
even if most do). Thus, while the court might be competent
to decide whether a particular decision bears a “reasonable
relationship” to the goal of an “actual enumeration,” the
same cannot be said of evaluating the “accuracy” of a
census. Indeed, the Court has rejected the claim that its prior
cases require “a census that was as accurate as possible” and
has recognized that “[t]he Constitution itself provides no real
instruction” on how to measure the “accuracy” of a census.
Wisconsin, 517 U.S. at 18; see also Tucker v. U.S. Dep’t of
Commerce, 958 F.2d 1411, 1417 (7th Cir. 1992) (Posner, J.)
(“It might be different if the apportionment clause, the

26 NAT’L URBAN LEAGUE V. ROSS

census statutes, or the Administrative Procedure Act
contained guidelines for an accurate decennial census, for
that would be some evidence that the framers of these
various enactments had been trying to create a judicially
administrable standard.”).
We cannot mechanically apply the political question
doctrine, which must be considered in light of the important
separation of powers function it performs. A court’s
authority to act depends on a threshold question of the
“appropriate role for the Federal Judiciary”: whether the
claims brought “are claims of legal right, resolvable
according to legal principles, or political questions that must
find their resolution elsewhere.” Rucho, 139 S. Ct. at 2494
(emphasis in original). Here, these background principles
weigh in favor of not adjudicating this dispute. No census
has been, or can be, fully accurate, according to the Court.
See Wisconsin, 517 U.S. at 6 (“Although each [census] was
designed with the goal of accomplishing an ‘actual
Enumeration’ of the population, no census is recognized as
having been wholly successful in achieving that goal.”).
Determining what level of accuracy is sufficient is simply
not something that the judicial branch is equipped to do.
11

Indeed, “[i]t would be difficult to think of a clearer example

11
The district court and plaintiffs seem to think that the district
court’s injunction does not require judicial supervision over the accuracy
of the census. Instead, they frame the injunction as merely preventing
the Secretary from adopting the Replan because it failed to follow the
requisite procedures for doing so. But the crux of the district court’s
injunction is its disagreement with the Secretary’s resolution of how to
balance accuracy of the census against the statutory deadline. See, infra,
§ II-A. And in ordering relief, the district court has inserted itself at the
top of the Executive branch’s census operation. See Motion at 17
(describing ongoing supervision of the district court under the
preliminary injunction).

NAT’L URBAN LEAGUE V. ROSS 27

of the type of governmental action that was intended by the
Constitution to be left to the political branches directly
responsible—as the Judicial Branch is not—to the electoral
process. Moreover, it is difficult to conceive of an area of
governmental activity in which the courts have less
competence.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
By allowing census-accuracy supervision under the guise of
APA review, we have “given the green light for future
political battles to be fought in this Court rather than where
they rightfully belong—the political branches.” DHS v.
Regents of the Univ. of California, 140 S. Ct. 1891, 1919
(2020) (Thomas, J., concurring in part and dissenting in
part).
C.
Plaintiffs also likely fail to establish Article III standing,
given that they have not shown that their alleged injury is
redressable by the courts, even assuming the other standing
requirements are met. An injury is necessarily not
redressable if the court has no authority to authorize the
relief requested. See Gonzales v. Gorsuch, 688 F.2d 1263,
1267 (9th Cir. 1982) (Kennedy, J.) (“Redressability requires
an analysis of whether the court has the power to right or to
prevent the claimed injury.”); Republic of Marshall Islands
v. United States, 865 F.3d 1187, 1199 (9th Cir. 2017)
(holding that a lawsuit seeking to enforce a treaty right was
not redressable because “the federal courts have no power to
right or to prevent . . . violat[ions of] a non-self-executing
treaty provision”).
Clearly, a district court has no authority to order an
Executive agency to disobey a Congressional statute.
Neither the district court nor plaintiffs have cited any
authority for this unprecedented expansion of the judicial
power to decide cases and controversies. See U.S. Const.

28 NAT’L URBAN LEAGUE V. ROSS

Art. III, § 2. Congress makes laws, the Executive enforces
them, and we interpret them in the course of adjudicating
disputes. Absent the metaphorical “striking down” of an
unconstitutional statute, we are impotent to set aside
congressionally enacted laws. See United States v. Booker,
543 U.S. 220, 283 (2005) (Stevens, J., dissenting in part)
(“[T]he Court simply has no authority to invalidate
legislation absent a showing that it is unconstitutional. To
paraphrase Chief Justice Marshall, an ‘act of the legislature’
must be ‘repugnant to the constitution’ in order to be void.’”
(quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))).
Here, no one challenges the constitutionality of the statute
establishing the Secretary’s deadline. Accordingly, the
district court had no authority to ignore it—let alone order
an Executive agency to do so.
All of the cases relied on by the district court to enjoin
operation of the statute, despite not finding any
constitutional infirmity, are wholly inapposite. None
suggest that a court can require an agency to disobey a
statute; they merely confirm that an agency is not necessarily
precluded from acting, even if it is doing so after a statutory
deadline. See, e.g., Barnhart v. Peabody Coal Co., 537 U.S.
149, 158 (2003) (holding that despite statute’s mandatory
deadline, post-deadline action taken by the agency was not
void because there was no Congressional intent that agency
would be deprived of statutory authority to act if it did so
beyond the deadline); Linemaster Switch Corp. v. EPA,
938 F.2d 1299, 1304 (D.C. Cir. 1991) (similar). The fact
that an agency can—depending on the text, structure, and
history of the statue at issue—continue to act beyond its
statutory deadline, says nothing about a court’s authority to
require an agency to do so.

NAT’L URBAN LEAGUE V. ROSS 29

D.
An agency’s decision on how to respond to a once-in-a-
century pandemic, in order to meet its statutory deadline, is
quintessentially the type of decision we should give
substantial deference to. Throughout this pandemic, we’ve
deferred to the elected branches to determine how to best
respond, even when shuttering our churches and businesses.
See, e.g., S. Bay United Pentecostal Church v. Newsom,
959 F.3d 938, 939 (9th Cir. 2020) (denying Free Exercise
Clause challenge to application of California’s stay-at-home
order to in-person religious services based on deference to
elected branches during pandemic). We’ve done so despite
our role in protecting individuals’ constitutional rights. See
On Fire Christian Ctr., Inc. v. Fischer, 2020 WL 1820249,
at *6 (W.D. Ky. 2020) (although “a state may implement
emergency measures that curtail constitutional rights”
during a pandemic, it cannot enact measures that are
“beyond all question, a plain, palpable invasion of rights
secured by the fundamental law”). If deference is
appropriate there, surely it is doubly appropriate here, where
courts are already required to show deference to the
agencies. See New York, 139 S. Ct. at 2578 & n.3 (Thomas,
J., concurring in part and dissenting in part) (explaining
highly deferential review of an “agency’s discretionary
choices and reasoning under the arbitrary-and-capricious
standard”); Wisconsin, 517 U.S. at 19–20 (explaining
narrow and deferential review of Secretary’s census
decision). Simply put, there’s no basis to anoint ourselves
supervisors of this sensitive process at the eleventh hour.
III.
At a minimum, we should have granted an administrative
stay while we further considered the underlying motion to
stay the injunction pending appeal. The government faces

30 NAT’L URBAN LEAGUE V. ROSS

irreparable harm from our refusal to do so. It’s undisputed
that if the government cannot finalize the data collection
phase of the census and move into the data processing phase
in a timely fashion, it will likely miss its statutory deadline.
Thus, even if the court ultimately rules for the defendants
on the merits, it might not matter much: the plaintiffs will
have effectively secured the relief they seek on the merits
(e.g., a delay of moving into the data processing phase). In
contrast, the defendants have said only that it would be
“difficult” to rehire and redeploy workers once terminated,
if they are allowed to do so, but not that it would be
impossible to revamp these workers if needed. Accordingly,
although an administrative stay would be inefficient if
ultimately reversed later, the damage would not be
irreparable. At most it would present a bureaucratic hassle
for the agencies. The same cannot be said for the majority’s
decision to deny the administrative stay. Similarly, the
district court, and now the majority, fail to consider the
harms that irreparably flow to other States. See Amicus
Brief at 8 (“The effect of the TRO was to run up the census
tally in Plaintiffs’ jurisdictions at the expense of lagging
jurisdictions like Louisiana and Mississippi.”); id. at 8–9
(noting “disruption of redistricting and reapportionment in
24 states that have constitutional or statutory deadlines” tied
to census).
Finally, the status quo here, to the extent that’s relevant,
is the legal landscape that would have existed prior to the
district court’s judicial misadventure. See Doe #1, 944 F.3d
at 1229 (Bress, J., dissenting) (explaining that preserving the
status quo is not an enumerated factor, but in any event, an
administrative “stay simply suspends judicial alteration of
the status quo, while the injunctive relief granted below
constitutes judicial intervention upending it”) (simplified).

NAT’L URBAN LEAGUE V. ROSS 31

Accordingly, we should have granted the request for an
administrative stay to restore the parties to the positions they
were in prior to the district court’s decision.
IV.
Despite its errors, the district court deserves some credit.
It seems to have been motivated by a valiant attempt to
balance two competing priorities: accuracy of the census
versus timeliness under the statutory deadline. But the
elected branches have already done this balancing. The
Secretary of Commerce was briefed on all of the Bureau
employee concerns the district judge found persuasive. The
Secretary considered those concerns, and then, in exercising
the role that the President appointed him to perform, made
the decision to proceed with the Replan. “By second-
guessing the Secretary’s weighing of risks and benefits and
penalizing him for departing from the Bureau’s” views about
the Replan, the district court, and now the majority,
“substitute[] [their] judgment for that of the agency.” New
York, 139 S. Ct. at 2571. Likewise, Congress was aware of
the potential problem and did not extend the deadline. The
House of Representatives held committee hearings and
ultimately voted on a bill to extend the deadline. The Senate
received the bill, held committee hearings on it, but then took
no further action—and hasn’t since July 2020.
12
Plaintiffs
suggest that the Senate might act on the bill soon.
13

12
https://www.congress.gov/bill/116th-congress/house-bill/6800/al
l-actions?overview=closed.
13
Plaintiffs’ Opposition at 14 n.1 (citing Hansi Lo Wang, Bipartisan
Senate Push to Extend Census Begins Weeks Before Count Is Set to End,
NPR (Sept. 15, 2020), https://www.npr.org/2020/09/15/913163016/bip

32 NAT’L URBAN LEAGUE V. ROSS

There is no basis for the judiciary to inject itself into this
sensitive political controversy and seize for itself the
decision to reevaluate the competing concerns between
accuracy and speed, after the elected branches have
apparently done so already—or are actively doing so now.
See Clinton v. City of New York, 524 U.S. 417, 449 (1998)
(Kennedy, J., concurring) (“Failure of political will does not
justify unconstitutional remedies.”). Plus, had we ruled for
the defendants, nothing would have prevented the elected
branches from revisiting this dispute at a later date. A
belated fix might entail additional cost and delay that the
district court’s injunction avoids. But in our constitutional
design, courts are not empowered to swoop in and rescue the
elected branches from themselves. If additional cost and
delay is the consequence of Congress’s inaction, or the
Secretary’s decision to adopt the Replan, then so be it. The
recourse for such problems lies with the People themselves
at the ballot box—not with unelected and unaccountable
judges in chambers.
I respectfully dissent.

artisan-senate-push-to-extend-census-begins-weeks-before-count-is-set
-to-end).