WASHINGTON – Some Supreme Court justices on Monday (Nov. 30, 2020) seemed skeptical of President Donald Trump’s claim he has the authority to exclude all undocumented immigrants from population totals when deciding congressional reapportionment. But they also wondered whether a definitive answer is needed now.
Chief Justice John Roberts was among those wondering if the court should wait to see whether the Census Bureau can even produce useful numbers about the undocumented population, or if they would make a difference when deciding the size of each state’s congressional delegation.
“All of these questions would be resolved” by waiting, Roberts said.
The states and organizations challenging Trump’s plan said during Monday’s arguments that while some delay might be warranted, the bottom line is that the president’s intentions would violate history, the text of the Constitution and Congress’s command that all persons in the country be counted for apportionment purposes.
Three lower courts have ruled against Trump, and a fourth said the time was not ripe for a decision on the question’s merits.
The administration is hurrying to finish the count and submit the reapportionment report to Congress before President-elect Joe Biden is inaugurated on Jan. 20.
Acting U.S. Solicitor General Jeffrey Wall told the justices it was “very unlikely” the administration could identify all of the more than 10 million people estimated to be illegally living in the country.
He said it is now trying identify categories of people – those awaiting deportation, for instance – who might be excluded.
But Wall said it was unknown at this point whether those categories would amount to enough to change how the congressional seats should be allocated.
No one disputes that eliminating the undocumented would shift representation from some more diverse states with large immigrant populations to states where the population is more White. A Pew Research Center study this summer found that if the country’s undocumented immigrants were excluded from apportionment, California, Texas and Florida would end up with one less seat and Minnesota, Ohio and Alabama would end up with one more, compared with what they would have gotten with no adjustments.
Some of the court’s liberal justices seemed skeptical of Wall’s assertion that everything was too speculative at this point for the court to act.
Justice Elena Kagan said the administration has been working on the project for some time, and by her estimates could already have enough documentation to remove up to 5 million people from the count.
Justice Stephen Breyer disputed whether Trump could legally exclude any substantial number, referring to the Constitution’s command that the census count “all persons” and that those numbers be used for reapportionment.
Conservative Justices Brett Kavanaugh and Amy Coney Barrett, both appointed to the court by Trump, also told Wall that history was working against him as Trump claimed a power no president has ever tried to exercise before.
But the justices spent more time on the question of whether this was the time for the court to settle that issue, or whether to wait to see if the census count is finished in time for Trump to act.
New York Solicitor General Barbara Underwood said it was clear enough at this point that some states could be hurt by Trump’s intentions that the court could decide the case now. She said the president’s plans are ‘flatly inconsistent” with the law.
The Census report is supposed to be submitted to the president by the end of the year. It is up to the president then to inform Congress within one week of the opening of its next session how its 435 seats are to be allocated. The House clerk then has 15 days to inform the states of the number of representatives to which each is entitled.
The case is Trump v. New York.