Conservative Justices Likely to Oppose Trump’s Scheme to Exclude Immigrants from the Census

Judging from Monday’s oral arguments in Trump v. New York, at least three conservative Justices — Amy Coney Barrett, Brett Kavanaugh, and Samuel Alito — oppose Trump’s xenophobic scheme to exclude undocumented immigrants from the 2020 census.

At issue is a July 21 Trump administration order that directs the Commerce Department to release two sets of numbers to be counted in this year’s census:

• The first set would include citizens and documented residents.
• The second set would comprise undocumented immigrants.

The Washington Post reports that if Trump has his way, California, Florida, and Texas would each lose a seat in the House. Further, Alabama, Minnesota, and Ohio would each keep a seat they would otherwise lose due to a declining population, according to an analysis by the Pew Research Center.

The states would lose an equal number of Electoral College votes.

The data also are used to apportion state and local government’s share of $1.5 trillion in federal funds, used for programs such as Medicaid, food stamps, tuition grants, and other social services.

How Many Immigrants Would be Excluded?

The Justices are dubious about deciding the issue before the administration can say how many immigrants would be identified in the census count.

“A previous Supreme Court ruling prohibits the use of statistical sampling, so Solicitor General Jeffrey Wall says Census Bureau must individually match immigration records with census responses,” Roll Call reports.

“Until they actually do the comparison, we just won’t know how many identifications we’re able to make and whether that stands to affect the apportionment,” Wall said.

The National Law Journal’s Marcia Coyle reports that, “During Monday’s arguments, the justices focused almost exclusively on whether the case was ripe to decide and whether the court should await more information about how many undocumented immigrants would be excluded.

What Will the President do?

“All these questions would be resolved by waiting,” Chief Justice John Roberts said.

“What is the problem with post-apportionment litigation?” the Chief asked the ACLU’s Dale Ho, counsel to the New York Immigration Coalition. “We don’t know what the [Commerce] Secretary is going to do. We don’t know what the president is going to do. We don’t know how many aliens will be excluded. We don’t know what the effect of that would be on apportionment. Waiting a couple of weeks won’t give much more information but waiting until reapportionment would give us all the information we don’t have,” Roberts argued.

Ho responded that a short wait would be permissible, “but If we’re talking about sending this case back for additional proceedings and doing this all over again over a period of  several months, that would be disruptive to ongoing redistricting processes.”

Kavanaugh asked Ho what numbers would be feasible to use.

Ho responded the government thinks three categories are “feasible,” but he said, “each of those groups, I think, is overbroad and to exclude any of them would violate constitutional and statutory commands.

“But there’s nothing that stops this court from ruling on the facial validity of this policy because it plainly lacks legitimate sweep,” Ho argued.

Alito called identifying all undocumented immigrants a “monumental task.”

He said that as the July 21 memo indicates, the Census Bureau is looking at “the bigger picture,” attempting to single out all undocumented immigrants.

“I don’t see how they can provide a partial answer to that.”

Barrett and Kavanaugh Question Trump’s Exercise of Power

Both Justices Barrett and Brett Kavanaugh told Solicitor General Wall that no President had tried to exercise such power before.

Barrett said that “a lot of historical evidence and longstanding practice really cuts against your position.”

A lot of immigrants have lived in the US for years, Barrett said. “Why aren’t they settled residents here?” she asked Wall.

Justice Stephen Breyer wondered whether Trump could exclude any illegal immigrants as the Constitution says the census should count “all persons” and that those numbers be used for reapportionment.

“The Constitution and the authorizing statute for the Census Bureau make no differentiation between immigrant and native-born residents,” Ho told the Court.

“No court, no Congress, and no executive branch before now have ever thought that undocumented immigrants could be excluded from the whole number of persons in each state,” Ho said.

New York Solicitor General Barbara Underwood argued that Trump’s July 21 memorandum tried to exclude all undocumented immigrants, and “an unlawful policy can’t be saved by the possibilities that a lawful policy could be written.’

“The question here is whether a blanket policy of not counting undocumented immigrants is lawful,” Underwood argued.

Court’s Decision is Imminent

The Census report is supposed to be submitted to the president by the end of the year, so the Court’s decision is imminent.

In January, the president has one week to tell Congress how its 435 seats are apportioned, and the House clerk has two weeks to tell the states how many representatives it’s entitled to.