WASHINGTON – The Supreme Court Friday gave the Trump administration a few more weeks to try to exclude undocumented immigrants from the census count used to apportion seats in Congress, in part because the effort may prove fruitless.
The quick decision in a case argued Nov. 30 signaled the court’s hope that it can avoid a more consequential ruling on an issue that could affect the balance of political power in Congress for the next decade.
The decision was unsigned, but the court’s three liberal justices dissented. They would have struck down the policy as unlawful.
President Donald Trump announced in July his intention to exclude up to 10.5 million undocumented immigrants from the tabulation on the theory that they are not permanent residents and do not merit political representation.
But counting them is difficult, and the Census Bureau has said it might not complete the work in time for Trump to submit a report to Congress before leaving office. The number of those who are easier to count – such as immigrants in detention facilities or subject to final deportation orders – may not be sufficient to affect the distribution of House seats and electoral votes among states.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the court’s majority opinion said. “To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here.”
“Everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status,” the majority said.
Associate Justice Stephen Breyer, writing for himself and the court’s two other liberals, said the case was ripe for a decision now.
“The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Breyer said. “The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so.”
He noted that the Census Bureau likely can include immigrants housed in Immigration and Customs Enforcement (ICE) detention centers, those subject to final deportation orders, some 700,000 recipients of Deferred Action for Childhood Arrivals (DACA) protection, and about 3.2 million more in removal proceedings.
“All told, the bureau already possesses the administrative records necessary to exclude at least four to five million aliens,” Breyer said “Those figures are certainly large enough to affect apportionment.”
Dale Ho, director of voting rights for the American Civil Liberties Union, which challenged Trump’s policy, vowed that if it’s implemented, “We’ll be right back in court challenging it.”
“The legal mandate is clear,” Ho said. “Every single person counts in the census, and every single person is represented in Congress.”
During oral argument, several conservative justices said it would be premature to uphold or deny the policy without knowing what impact it could have. If the administration follows through with a muscular policy that affects apportionment, they reasoned, opponents then could challenge it in court.
What’s more, President-elect Joe Biden’s administration likely would seek to keep undocumented immigrants in the head count. That could lead to lawsuits from proponents of the plan after Trump is out of office.
Trump’s plan, if implemented in sweeping fashion, could strip California and perhaps other states of seats in the House of Representatives. States with large numbers of undocumented immigrants tend to lean Democratic, while those that could gain House seats are majority-Republican.
Gaining or losing House seats also affects states’ electoral votes. The policy also could alter the distribution of about $1.5 trillion in federal funds.
Led by New York, a coalition of 22 states and 15 cities filed suit after Trump announced the policy in July, and a federal district court ruled in September that it was unlawful. The three-judge panel said it served to deter immigrant households from responding to the census count. Two federal courts in California and Maryland issued similar rulings.
The justices agreed to hear and decide the case quickly because time is running out on the 2020 census process. Commerce Secretary Wilbur Ross’ report to the president is due Dec. 31. Trump has about 10 days after that to report to Congress on the number of House seats allocated to each state.