Trump’s bid to exclude undocumented immigrants from reapportionment arrives at Supreme Court

cigaretteman

HR King
May 29, 2001
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President Trump will swing for the fences in his last immigration legal battle at the Supreme Court, where he claims authority for the first time in the nation’s history to exclude undocumented residents when deciding the size of each state’s congressional delegation.

Opponents of his plan say it is foreclosed by more than 200 years of practice, the text of the Constitution and the authority granted the president by Congress. Three lower courts have ruled against Trump, and a fourth said the time was not ripe for a decision on the question’s merits.
But the president’s lawyers will tell the Supreme Court on Monday that it is up to the president to decide whether undocumented immigrants should be counted, a decision that could have far-reaching implications for a state’s representation in Congress and power in the electoral college, and for billions of dollars in federal funds.
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“The president need not treat all illegal aliens as ‘inhabitants’ of the states and thereby allow their defiance of federal law to distort the allocation of the people’s representatives,” acting solicitor general Jeffrey B. Wall wrote in the government’s brief to the court.
“To the contrary, that an alien lacks permission to be in this country, and may be subject to removal, is relevant to whether he has sufficient ties to a state to rank among its ‘inhabitants.’ ”
What the Supreme Court’s rulings mean for the 2020 Census and Trump’s attempt to exclude the undocumented from the count
Trump’s approach could shift congressional seats from states with large immigrant populations, such as California, and spare some rural and Republican areas, such as Alabama, expected to lose a member of Congress.

A Census 2020 form. (Gregory Bull/AP)
Trump’s immigration policy initiatives have tested the Supreme Court before. In 2018, the court ruled 5 to 4 that the president had authority to bar some immigrants from mostly Muslim countries. Last year, by the same count, it said his administration had not followed proper procedures in trying to add a citizenship question to the census form.
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Trump’s opponents say his reapportionment intentions, announced in a July memorandum, are an extension of that. Legally, they say, his plan is directly contradicted by the Constitution’s requirement to base apportionment of the House of Representatives on “the whole number of persons in each state” as determined by the once-a-decade census.
The constitutional mandates mean undocumented immigrants are included in that “whole number,” argues New York, one of the states challenging Trump’s intentions.
The inclusion was “the result of a clear choice to provide representation in the House to all persons affected and served by the federal government, and not only to citizens or voters,” New York Attorney General Letitia James says in the state’s brief. “The presidential memorandum at issue here defies these unambiguous mandates and breaks with more than two hundred years of history.”
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Trump’s memorandum indicated he believed that some states would be getting more congressional seats than deserved — California was implied but not named — because of their numbers of undocumented residents.
He directed Commerce Secretary Wilbur Ross to provide him with two sets of numbers, one that includes unauthorized immigrants and one that does not, “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” It remains unclear how Ross may attempt to do this, without a citizenship question on the census form and with no conclusive tallies in existence indicating how many undocumented people live in each state.

Commerce Secretary Wilbur Ross listens as President Trump speaks in the White House Cabinet Room. (Jabin Botsford/The Washington Post)
Dale Ho, a lawyer at the American Civil Liberties Union who is among those who will argue at the court Monday, said the president is trying to “weaponize” the census and that his power to direct the count does not stretch so far.
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“It’s right that the president has broad discretion, but it has never been held that the president has discretion to subtract people from the total numbers,” Ho said.
The special three-member court decision under review by the Supreme Court said Trump’s memorandum was “an unlawful exercise of the authority granted” to him by Congress and that the question was “not particularly close or complicated.”
Supreme Court goes idle on Trump-related disputes and time is running out
But the decision also gives the Supreme Court a way out if justices don’t want to make such an important decision before the end of the year.
It said the states and organizations challenging the president’s memorandum had legal standing only because it might “chill” participation in the census by immigrant groups.

Now that the census has been completed, the government argues, the rationale no longer applies. It says the Supreme Court should simply vacate the opinions of the lower courts and wait to see if the Census Bureau can even come up with the numbers the president has requested, and whether they make any difference in reapportionment.
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But Thomas Wolf, senior counsel at the Brennan Center for Justice at New York University’s School of Law, said that if the Supreme Court delays a decision, “a bad actor is liberated to test the limits of our apportionment system that has never been disrespected or abused in the manner that the president is proposing.”
There are big questions about whether and how the president can realistically exclude undocumented immigrants from state population totals, even if the justices were to agree he has the authority.

The government has not explained how it plans to identify and count undocumented immigrants. An estimated 10.5 million to 12 million live in the United States, but the law requires that apportionment numbers be based on an actual enumeration of people living in a state, not estimates, and no comprehensive list of undocumented immigrants exists.
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Attempts to count them could involve subtracting citizens and legally documented noncitizens — such as refugees, people with student or work visas, and green-card holders — from the total population count. But that could miss others who are authorized to be in the United States, such as people protected by the Deferred Action for Childhood Arrivals program, or those who have applied for asylum.
Government officials have suggested they will use lists of people in Immigration and Customs Enforcement detention on April 1, Census Day. But that is a fraction of the total, and would likely not be enough people to change the apportionment of House seats.
Census Bureau signals Trump unlikely to get data in time to exclude undocumented immigrants
Another barrier is time: Delays caused by the coronavirus pandemic put the census several months behind schedule. The government initially requested that Congress approve a four-month delay to the Dec. 31 statutory deadline to deliver state population counts for apportionment. But after Trump issued his memo, the bureau changed course and said it would deliver the numbers by that date after all, compressing the six months it had planned for post-count data analysis to around 2 1/2 months.
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In mid-November, however, bureau staffers told Commerce Department officials the state population counts would not be ready until late January or February, after Trump is scheduled to leave office, according to people familiar with the discussions who, like others, spoke on the condition of anonymity due to the matter’s ongoing sensitivity. It is unclear how much additional time it would take to give the president a second set of numbers reflecting a count of undocumented immigrants.
The Census Bureau has not confirmed that the estimated delivery date had changed. Its director, Steven Dillingham, issued a statement saying “certain processing anomalies” had been discovered during post-count analysis.
Some of the anomalies are “critical defects” that will require time to investigate, said Terri Ann Lowenthal, a former staff director of the House Oversight census subcommittee.
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