Supreme Court Dismisses Challenge to Trump Census Order

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December 18, 2020

The Supreme Court on Friday dismissed a challenge to President Trump's bid to exclude illegal immigrants from the population baseline for awarding House seats, saying the challenge was premature.

In an unsigned opinion, the High Court said a final decision should be put off given ongoing uncertainty over the scope and effect of Trump's policy. A July memorandum from the president ordered commerce secretary Wilbur Ross to exclude illegal immigrants from the reapportionment baseline, which is derived from the decennial census. Blue states and civil-rights groups challenged the order on several grounds, but the Court said there was not enough information to evaluate any of them.

The ruling could tee up a chaotic redistricting process, depending on the reach of Trump's directive. The states will begin to redraw their legislative lines soon after Congress receives an allocation of House seats from the White House. Ongoing legal fights over the exclusion of non-citizens could complicate redistricting in states such as California, Texas, and Florida, which together have over 100 seats in the House.

Just how many undocumented immigrants the order will reach is not clear. Without a clear scope, it's too early to tell how the order will affect states with high populations of non-citizens, the High Court said, which undercuts the basis for a legal challenge.

Though Trump issued the contested order in July, officials at the Census Bureau have struggled to develop a formula for identifying every illegal alien in the nation.

"Career experts at the Census Bureau confirmed with me that they still don't know even roughly how many illegal aliens it'll be able to identify, let alone how their number and geographic concentration might affect apportionment," acting solicitor general Jeff Wall told the justices during arguments in November. He added that they'll at least be able to exclude every person in immigration detention, about 60,000 individuals.

"At present, this case is riddled with contingencies and speculation that impede judicial review," the unsigned decision reads.

Justice Stephen Breyer, who led the three liberal justices in dissent, waved away that uncertainty. While the precise contours of the policy might be unclear, the government has said it will carry out the order very soon and to the maximum extent possible. As such, Breyer argued, there's no reason for foot-dragging.

"Waiting to adjudicate plaintiffs' claims until after the president submits his tabulation to Congress, as the Court seems to prefer, … risks needless and costly delays in apportionment," the justice wrote.

Trump's memo notes that 2.2 million illegal aliens reside in California alone and that their inclusion in the apportionment process "could result in the allocation of two or three more congressional seats than would otherwise be allocated." House Democrats seized on that point in legal filings before the High Court.

"[W]hen issuing the Memorandum, the president abandoned any pretense of lawful motivations, … confirming his intent to enhance the voting power of certain favored constituencies at the expense of others," the House's brief reads.

The ACLU joined the challenge to Trump's order and promised to continue its fight should the administration move forward.

"Every single person counts in the census, and every single person is represented in Congress," ACLU lawyer Dale Ho said. "If this policy is ever actually implemented, we'll be right back in court challenging it."

Census data are also used to distribute federal funds among the states. The National School Boards Association told the Court in legal papers that about $5 billion in Head Start funding and $18.9 billion in school meal subsidies were distributed pursuant to census figures in 2015.

"Countless public and private institutions rely on an accurate census to shape policy, set priorities and distribute resources," the brief reads.

The Constitution requires the government to conduct a census every 10 years by counting "the whole number of persons in each state." The Trump administration argues that this phrase, which also appears in federal census statutes, covers only "inhabitants," and that a person in the country illegally is not an inhabitant.

House Democrats and blue states say the phrase straightforwardly means total residents and note the Census Bureau has historically included the undocumented in its count.

The case is No. 20-366 Trump v. New York.

Trump v. New York decision by Washington Free Beacon