In theory, a President is still President with the full powers of the office until the last second of the term. In practice, the powers of a president in the last weeks in office are somewhat limited. Any legislative priorities that could not get through the previous Congress are unlikely to be rushed through by the new Congress. (In fact, most times, Congress will spend much of the seventeen days between January 3 and January 20 in the necessary work of organizing rather than focusing on legislation.)
On the foreign policy front, it doesn’t take a Michael Flynn violating the law for our allies and adversaries to know that any decision made by the outgoing president can be quickly reversed by the new president. In short, the outgoing president really is unable to make the type of long-term commitment that would encourage another country to make a deal.
So that leaves a president with actions that can be taken by the president alone. Not surprisingly, the typical president is giving final approval to regulations and giving pardons and commuting sentences. The enactment (or repeal) of regulations is a time-consuming process under the Administrative Procedure Act, and the new Administration is unable to simply set aside the last minute regulations. (In part to deal with this problem, it is possible for Congress to reject these regulations.) And a pardon or commutation is irreversible.
Because 2020 was a Census year, there is one last chance for our criminal President to have an impact. Under the law, the President is supposed to have no real role in the census, but when has President Trump ever been concerned with such minor details as the law. And for most of his term, President Trump has been trying to monkey with the census to exclude immigrants from the count. While his proposals, if put into full effect, would almost certainly violate the statutes and constitutional provisions related to the census, the courts have held that any dispute about those proposals is not ripe for court review until we know if they can be put into effect.
Late last year, it became clear that the Census Bureau would not be able to both finalize the real number and also get the data to make the illegal adjustments that Trump wants by the December 31 statutory deadline for getting the data for Congressional reapportionment to the president or by the January 10 statutory deadline for Trump to submit the Congressional reapportionment numbers to Congress. In the arguments at the Supreme Court over the Trump policy, the Solicitor General conceded that it was going to be difficult to get the data together on an accurate count of the different classes of immigrants that might be excluded under the proposed Trump policy.
Earlier this week, we had a letter from the Inspector General for the Department of Commerce (which includes the Census Bureau) and a response from the Director of the Census Bureau that gives a hint at what is happening with the Census. Up until the release of these letters, all that had been heard from the Census Bureau was that quality checks was delaying the release of the final numbers. The releases implied that some of the COVID-19 complications were causing problems with the real numbers. But these letters put a different spin on things.
According to the Inspector General’s letter, career staff had reported to the OIG that the political appointees at the Census Bureau had told staff to make the production of a “technical report” related to the number of immigrants a “top priority” and that it had to be completed by January 15. The January 15 deadline is key for two reasons. The first is a simple time line matter. The other is what it says about the real numbers.
On the deadline side, there is the simple matters of the looming end of the Trump Presidency. With Monday being a federal holiday, there will only be one and a half business days next week before the Trump Administration comes to an end. In theory, if such a report was done by the end of the day Friday, that report could be used to adjust the real numbers on Tuesday, and the adjusted numbers could be sent later Tuesday (or first thing on Wednesday) to the Secretary of Commerce who could then forward them to President Trump who could forward them to Congress before noon on Wednesday. Realistically, a “get it done before leaving on Friday” was the last opportunity to get the adjustment done.
On the going forward side, the initial setting of a Friday deadline implies that the Census Bureau is close to being done with the work on the real numbers. Given that the Biden Administration is not intending to cook the books by using the technical report to adjust the Census Numbers, the completion of the technical report before January 20 only matters if the real numbers are available for adjustment prior to January 20. Looking at the “C.Y.A.” response given by the Director (placing the blame on the “career” Deputy Director, it looks like the real numbers are close to being ready but are not quite ready.
Of course, the conclusion about the state of the real numbers is simply my hunch. But, it is a logical read of the two acts noted in the response. First, there was the request to do this technical report about the immigration numbers. While January 15 was the practical deadline for having these numbers, there would be no reason to even bother diverting staff to that project if there was no chance to get the real numbers done by January 15. On the other hand, the immediate termination of this effort on January 12 when the Inspector General requested further information suggests that the numbers from the full count are not quite ready (and will not be done until after January 20).
In short, it looks like the last effort of Trump to monkey with the count has failed. But it also looks like it may be another week (or more) until we get the final numbers. There is one other hint from the Census Bureau about the state of the census. For redistricting purposes, there are three key releases: 1) the statewide number; 2) the redistricting data (released on a state-by-state basis); and 3) the census maps. Because the redistricting numbers break down the count within the state at multiple levels (down to the census block), it is necessary to have the census maps to determine which part of Houston, Texas is in that census block 1012 for Harris County, Texas (which is essential for redistricting). According to a press release on Thursday, January 14, the Census Bureau will start releasing the maps for the states on January 19 and will finish releasing them by February 28. (As best as I can tell in 2010, the maps were released with the redistricting numbers.)
Once we see an actual schedule for the release of the state-by-state numbers, we will start trying to do an analysis on what the numbers might mean for the 2022 house elections. But the good news for now is that it looks like we will have an honest count and real numbers will be used to apportion representation in Congress.
