Despite the polls, President Donald Trump is predicting an Election Day “wave like you’ve never seen before.” But his allies and associates in all three branches of government are hedging their bets with actions designed to extend his sway in key areas, even if he loses.
On Capitol Hill, the Republican-controlled Senate is moving to cement conservative control of the Supreme Court by confirming Trump’s nomination of Judge Amy Coney Barrett. Executive branch officials are rushing to extend his deregulation efforts and fill many vacant jobs.
And the administration hopes the high court will help it complete the 2020 census under rules that would bolster Republican voting and financial power for the next decade. At stake is how congressional representation is calculated and billions of dollars in federal aid are allocated to states and localities.
The court recently overturned a lower court ruling, allowing more time for completing the census and minimizing a potential undercount of minorities and younger Americans. The court also scheduled a Nov. 30 hearing on the administration’s latest effort to exclude illegal immigrants from the count, which could cost three states, including Texas, one member of the U.S. House of Representatives.
The court vacancy that prompted the Barrett nomination is unique, the closest to a pending presidential election such a vacancy has been filled (though several were approved soon after elections). Filling lesser jobs and taking administrative actions is less unusual, though it usually occurs at the end of a second term, not during a re-election campaign.
The administration’s most questionable act is its effort to exclude illegal immigrants from the census, which is constitutionally mandated every 10 years to determine population changes used to update allocation of U.S. House seats and federal funds.
A three-judge federal court in New York, in a unanimous decision by two appointees of President George W. Bush and one of President Barack Obama, said Trump exceeded his authority in directing the Commerce Department to provide two sets of numbers, one excluding the millions of unauthorized immigrants. The Constitution says the census should provide “the whole number of persons in each State.”
A study by Dudley Poston of Texas A&M and Teresa Sullivan for the University of Virginia’s Center for Politics concluded their exclusion could cost California, Texas and New Jersey one House seat each, and similarly benefit Alabama, Minnesota and Ohio. It could also cost big states with large numbers of undocumented persons substantial amounts of federal funds.
By law, the census must be finished by Dec. 31, with the president then required to notify Congress “the whole number of persons in each State” and the number of representatives to which each is entitled. The House clerk, in turn, is required to pass the latter number to each state.
But the administration is already hinting it may not complete its work until early 2021. More important, it is unclear if the new House, almost certain to be controlled again by the Democrats, can reject Trump proposals that benefit Republicans.
Earlier this year, fearing delays in part from the COVID-19 pandemic, the Commerce Department urged extending the census deadline until April 30, 2021, allowing more time to count those inhabitants who are traditionally harder to reach, mostly young people, minorities and poor people.
But the White House rejected an extension, presumably because that could give the final decision to the next administration if Trump loses re-election. Then, it decided to halt the count, lest it be unable to complete its calculations by Dec. 31.
Besides determining how many House seats each state will get for the next 10 years, the census guides legislative decisions on representation within the states and determines the location of recipients for the billions of dollars in annual federal aid, much of it for people below certain income levels.
The Nov. 30 hearing is the second time possible exclusion of illegals has reached the Supreme Court. Last year, it voted 5-4 to block the initial administration effort on grounds it failed to use the proper procedures.
But that could change this time, since the court will likely include Judge Barrett, named by Trump to succeed the late Judge Ruth Bader Ginsburg, part of the prior five-justice majority. The case may provide an early sign of whether Democratic concerns about her potential impact are justified.
Meanwhile, the New York Times reported that officials throughout the administration are rushing to fill jobs and extending efforts to revise or scrap regulations deemed to be anti-business. They include everything from easing restrictions for carrying highly flammable liquefied natural gas on freight trains to requiring sponsors of candidates for immigration to provide detailed proof they can support the newcomers financially.
Many of these actions could be subject to congressional review under a procedure the GOP used four years ago to overturn some regulations implemented in the final weeks of the Obama administration. Overturning regulations requires a majority vote of both houses, plus the president’s signature, a possibility if Democrats sweep the board Nov. 3.
As with the census, this suggests that battles over Trump’s initiatives won’t necessarily end if – or when – he leaves office.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Write to him via email at: email@example.com.
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