The US supreme court appeared skeptical of Donald Trump’s effort to exclude undocumented immigrants from critical census data, but it also appeared hesitant to immediately halt the policy.
The court on Monday considered a high-stakes dispute focused on a July memo in which Trump ordered the Department of Commerce to exclude undocumented people from the census tally used to determine how many seats each state gets in Congress. The decennial census, conducted since America’s founding, has long used the total population as the basis for allocating seats.
The Trump administration’s policy would probably cause the most harm to immigrant-rich places such as California and Texas, while benefiting whiter, more conservative areas for the next decade. Several states, led by New York, as well as a coalition of immigrant advocacy groups, have challenged the policy in courts across the country. Lower courts in several of the cases have blocked the policy as unlawful.
On Monday, even two of the court’s more conservative justices, Brett Kavanaugh and Amy Coney Barrett, appeared somewhat wary of the idea that the constitution authorizes the president to categorically exclude undocumented immigrants from the apportionment counts. The constitution says congressional seats should be apportioned based on “the whole number of persons”.
“A lot of the historical evidence and the longstanding practice really cuts against your position,” Barrett told Jeffrey Wall, the government’s top lawyer, who argued on behalf of the Trump administration.
Attempts to exclude non-citizens have been at the core of the Trump administration’s census strategy. Last year, the supreme court blocked the Trump administration from adding a citizenship question to the census itself. This year, the administration rushed to complete the count even as experts warned it needed more time to produce reliable data, in what was probably an effort to give Trump a say over the final numbers before he leaves office. If the possibility remains open, President-elect Joe Biden would probably reverse the order to exclude undocumented immigrants from apportionment once he takes office.
Much of Monday’s argument focused not on the merits of the president’s actions but on the timing of the case. Wall told the justices on Monday that the commerce department was behind schedule – it faces a 31 December deadline – in preparing the data for the president, and it was still unclear how many undocumented people the government would be able to exclude. The court should wait until that uncertainty was resolved to see how many people could be affected before issuing a ruling, he said.
Many of the justices wondered aloud whether it was simply too early for the US supreme court to step in and stop the commerce secretary, Wilbur Ross, who oversees the census, from sending Trump a dataset with a tally of undocumented immigrants.
“I find the posture of this case quite frustrating. It could be that we are dealing with a possibility that is quite important. It could be that this is much ado about very little. It depends on what the Census Bureau and the Department of Commerce are able to do,” said Samuel Alito, another conservative justice on the court.
Justice Neil Gorsuch, a conservative, suggested that the number of undocumented people might be so small that it wouldn’t affect apportionment. But Elena Kagan and Sonia Sotomayor, two of the court’s more liberal members, pushed back strongly on that idea. Kagan noted the government already had records on millions of undocumented people.
Sotomayor said that regardless of what the Census Bureau ultimately calculated, the Trump administration had chosen to exclude all undocumented immigrants, a choice that signaled it wanted to have as large an effect as possible. “The number intended is substantially large,” she said.
Wall suggested the challengers should bring a suit next year, after seats were apportioned, but Chief Justice John Roberts seemed wary. He noted that asking the court to step in after apportionment would be like trying to “unscramble the eggs” because any change in the seats a single state gets has “ripple effects”.
Dale Ho, the director of the Voting Rights Project at the American Civil Liberties Union, noted in court that waiting too long would disrupt the redistricting process states are scheduled to begin next year.
But moving away from the procedure of the case, Ho said the census had always evaluated whether or not to count people based on residency, not immigration status. Noting that undocumented people contribute to America’s economy, serve as essential workers and pay millions in taxes, he closed his argument by highlighting the absurdity of excluding them from the count.
“While the president may have some discretion in borderline cases, he does not have discretion to erase millions of state residents from the apportionment based solely on lawful immigration status,” he said. “They’re our neighbors, our co-workers, and our family members. They are usual residents under any plausible definitions of that term.”