The Supreme Court looks unlikely to issue a quick decision on the Trump administration's bid to exclude illegal immigrants from the population baseline for awarding congressional seats.
The justices heard oral arguments for the case on Monday. At stake in the proceedings are untold millions in federal aid conditioned on population, as well as representation in the House of Representatives for states like California, Florida, and Texas, which have large numbers of illegal aliens.
Acting solicitor general Jeffrey Wall told the justices that the Census Bureau will not be able to identify most illegal immigrants in the country because of logistical challenges, meaning the president will move instead to exclude specific subsets of undocumented people, like those in ICE facilities. That concession stirred interest in a temporary delay among some of the justices, who said the Court should stay its hand until President Donald Trump decides which groups to discount.
"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. All these questions would be resolved if we wait until the apportionment takes place," Chief Justice John Roberts said during Monday's hearing.
A delay means that the states could be in store for a chaotic redistricting process while the House of Representatives itself is closely divided. Many states set legal deadlines for completing their redraw. And Texas, which will have almost 40 seats, presents a particular problem since its legislature will adjourn until 2023 in May. The Texas Legislature draws district boundaries but only meets every other year.
Federal law requires the president to send Congress a new allocation of House seats, called a reapportionment, in early January, meaning Trump could notch a significant if controversial accomplishment in his final days as president if his policy is carried out. The administration has tried to make the census a complement to its hawkish immigration agenda. The government previously attempted to include a citizenship question on census questionnaires, but the Court blocked that move in June 2019.
The government is currently identifying illegal aliens by matching their census responses with other government records that reveal immigration status. Wall said Census Bureau officials do not yet know how many non-citizens they will ultimately pinpoint using that process. Statistical sampling is not permitted in the census.
According to Wall, the government will be able to identify and exclude anyone in an ICE detention center—about 60,000 people—but not all 12 million undocumented immigrants.
"It is very unlikely that the bureau will be able to identify all or substantially all illegal aliens present in the country," Wall said. "They will be able, I think, to do ICE facilities, which … is some number in the tens of thousands. The question is where it will fall in the middle, and we don't know."
As such, Wall said, the best course would be for the justices to toss out lower court rulings against the administration and await new developments. Three federal courts have said Trump's order is unlawful, while a fourth said a decision is too premature given the continued uncertainty.
Justice Elena Kagan argued the number of immigrants excluded could easily exceed Wall's estimates. She said that the government has detailed records on DACA recipients, non-citizens in removal proceedings, and those subject to removal orders. All told, Kagan suggested the administration could "easily get over four million people."
Even the conservative justices questioned whether the government can categorically exclude all illegal immigrants from the reapportionment. The Constitution requires the government to conduct a census every 10 years. Seats in the House of Representatives are allocated among the states "according to their respective numbers, counting the whole number of persons in each state."
Justice Amy Coney Barrett noted that the undocumented have always been counted in the census.
"A lot of the historical evidence and longstanding practice really cuts against your position," Barrett told Wall. She went on to wonder why a person who has lived in the country for 20 years would not be considered a settled resident, even if they are here illegally. Justice Brett Kavanaugh also called legal arguments against the administration's move "forceful."
Trump's policy faces obstacles beyond the High Court. The Democrat-controlled House might not sign off on a reapportionment that excludes certain populations, which would be unprecedented. President-elect Joe Biden will take office on Jan. 20 and could attempt an end run of his own, though such a move would draw fresh legal challenges.
The case is No. 20-366 Trump v. New York.