Even though Joe Biden will become President on January 20, Donald Trump is still the president.  Thus, until January 20, the policies of President Trump are still the policies of the U.S. Government, and Bill Barr and Noel Francisco still get to decide what position the U.S. will take in pending litigation

This week, the U.S. Supreme Court returns for its first set of oral arguments since Joe Biden became the presumptive President-elect.    And the session begins with a very big case — Trump vs. New York.  The issue in the case is whether unauthorized immigrants count as part of U.S. population in the census for the purpose of allocating congressional seats and government funding.

The big development on this case is that the Census Bureau will apparently be unable to meet the statutory deadline of late December for reporting the total count due to certain issues that have arisen in finalizing the count.    The U.S. Supreme Court had shortened the time limits on this case to make sure that they could hear arguments on it and issue a decision in a timely fashion.  But if the numbers will not be available until after January 20, and President Biden opts to use the full count, this case could disappear as moot.  I would prefer that the Supreme Court issue a decision upholding the plain language of the Constitution requiring a count of all persons residing in the U.S., but, as long as the Republicans attempt to manipulate the numbers fails, I can live with a non-decision.

The other big case that was set for December concerned congressional access to grand jury testimony in the Mueller investigation.  The House Judiciary Committee requested that the case be postponed in light of the election results and the expiration of the current Congress.  The Supreme Court — probably hoping to avoid this thorny issue — agreed.  The new Congress will have to decide in January if they still want access to this testimony.  Given that Trump will no longer be around (and it is unclear if you can impeach a former official), this case is probably going to be withdrawn.  Since the case is based on the federal Rules of Criminal Procedure, the issues can probably be worked out with the rules committee to clearly address when Congress can request to review grand jury proceedings.

One last thing, whenever there is a presidential transition, one question is how much and how quickly does the U.S. government shift its legal positions in pending cases.  Any lawyer who works for the government repeatedly hears the reminder that the government is not an ordinary party but rather is the representative of the people.  Some of the persuasive power of government attorneys is the consistency of the government’s position on most questions.  Simply put, the meaning of a statute or a constitutional provision does not change just because there is a new President or Attorney General or Solicitor General.  On the other hand, there is room for disagreement between lawyers and the line between policy preferences and legal argument is sometimes very thin.   There are always “cases in the pipeline” working their way to the Supreme Court  or at the Supreme Court.  (For example, the government is requesting that the Supreme Court hear the Boston Bomber case after the appellate court vacated the death penalty.  The request has some merit, but does a Biden Administration withdraw the petition and agree to a non-death sentence? )  And there are cases in which the government — either on its own initiative or at the request of the Supreme Court — files arguments as an amicus curiae (literally “friend of the court”).  Does a Biden Administration seek to withdraw or change those arguments.

UPDATE:  On rare occasions, oral argument actually is significant.  While it is always hard to read the tea leaves, the Trump Administration made an interesting semi-concession in today’s argument.  The current memorandum suggests an intent to exclude all undocumented immigrants on the factually and legally flawed theory that they do not have any residence in the U.S.  Today, the acting Solicitor General suggested that the Trump Administration actually only wants to exclude a limited number of immigrants — those facing deportation hearings.  Because there is no final decision yet on who will be excluded from the final count, the Solicitor General is suggesting that the Supreme Court should set aside the lower court ruling barring the Trump Administration from following the current memorandum which covers a broader group.  Of course, the states and groups opposing the current memorandum suggested that, if Trump only wants to exclude a smaller group from the count, he needs to do  a revised memorandum which would have to be litigated anew in the lower courts, but, that until he withdraws the current memorandum, the case is not yet moot.