The Trump administration will press its bid to exclude illegal aliens from the population baseline for awarding House seats on Monday in the Supreme Court, a move that would shift political clout away from states with large undocumented populations.
President Donald Trump's July order to exclude illegal aliens from the apportionment could be one of his most consequential acts in office. States like California, where approximately 6 percent of the population is undocumented, will lose out on congressional seats and untold millions in federal funds if the administration prevails.
Blue states losing even a handful of seats would make the House's thin Democratic majority even more precarious. Congressional analysts suggest Democrats will lose the House in 2022 on the basis of reapportionment alone, since red states with growing populations are expected to gain seats. But right-leaning states like Florida and Texas could each pick up one seat fewer as a result of the order, according to the Pew Research Center.
The dispute is moving at a fast clip. Census figures are by law due to the White House from Commerce Secretary Wilbur Ross on Dec. 31. President Trump must transmit a reapportionment to Congress by Jan. 10, 2021. The Constitution requires the government to conduct a census every 10 years.
A three-judge court in New York blocked Trump's order after a coalition of blue states, cities, and civil-rights groups sued the administration. The court said Trump's directive violates the federal census laws. Another court in California went further and said Trump's order violates the Constitution.
The Constitution and a federal statute provide that House seats are awarded based on "the whole number of persons in each state," a key phrase in the case. In court filings, acting solicitor general Jeffrey Wall argues that phrase covers the "inhabitants" of each state. It's reasonable to say a person who "lacks permission to be in this country" is not an inhabitant, Wall wrote, adding that the president has discretion to determine who counts as an inhabitant.
In a 1992 case, the Supreme Court allowed the first Bush administration to include overseas Defense Department personnel in their home state populations for the census. The Court recognized that the president is the "ultimate decision-maker concerning the contents of the decennial census," Wall wrote.
But the justices may not need to get into the census laws to dispense with the case. Wall argues the plaintiffs lack a legal basis, called standing, to bring their challenge. The New York court said Trump's order could deter marginalized groups from answering questions from census field workers, which would hurt the accuracy of the count and harm the plaintiff cities and states. But field data collection ended in October, so the alleged injury is no longer occurring. That could fatally undercut the plaintiffs.
The blue state coalition, led by New York solicitor general Barbara Underwood, counters that the key phrase covers all people "who usually reside here," including illegal aliens. And the census laws also make clear that the reapportionment must be based solely on the bottom-line outcome of the count. The president can't shade certain people out of that final tabulation, Underwood wrote in a response to the administration.
A trio of former Census Bureau chiefs filed a brief supporting the blue states. They say the agency's usual practice going back to the founding is to count all residents, regardless of immigration status. That settled practice should count for a lot, they say.
"The longstanding implementation of the constitutional and statutory provisions at issue here is a practice of the government that represents an exposition of the Constitution," their brief reads.
The government has not developed a precise method for sifting illegal aliens out of the reapportionment baseline. The administration tried to include a citizenship question on census forms, but that move faltered in the face of legal challenges. The president then directed federal agencies to use administrative records to identify non-citizens, but in legal papers the Justice Department conceded that census officials haven't worked out the finer points.
"The Census Bureau is still evaluating the extent to which, as a practical matter, administrative records pertaining to immigration status can be used to identify and exclude illegal aliens from the apportionment population count and is currently formulating a methodology for potentially accomplishing that," the filing reads.
The case is No. 20-366 Trump v. New York.