The Supreme Court held a hearing on Monday in the Trump v.New York case over the challenge of the Trump administration’s plan to exclude individuals illegally residing in the U.S. from the state breakdown responsible for the distribution of seats in the House of Representatives was used. Much is at stake in this case: if the judges allow the administration to implement the plan before they step down in January, states with large immigrant populations could lose political power, while states with fewer immigrants could gain it. After more than 90 minutes of debate, several judges were skeptical of the legality of President Donald Trump’s plan. However, they spent relatively little time on the issue, focusing instead on whether the Supreme Court could or should weigh it now, and in the end it seemed very likely that they would not, if at all, resolve the matter immediately.
The constitution requires a census every 10 years to determine the population of the United States, which is then used to allocate seats in the House of Representatives. Federal law describes the process by which this occurs. The Secretary of Commerce, who has been empowered to conduct the census by Congress, submits a report to the President that includes “the total population by state.” The President then sends a report to Congress that includes “the total number of people in each state” and “the number of representatives each state would be entitled to”.
Throughout US history, the population numbers used for the distribution of seats in the House of Representatives included everyone in each state, regardless of immigration status. However, in July 2020, Trump announced that the total population used to determine the number of seats for each state would not include people who are illegally in the country. In a memorandum to Secretary of Commerce Wilbur Ross, Trump called for two numbers for each state: the total population as determined by the 2020 census; and the total population, deducting – as far as possible – people living in the country without a permit. The second number would be used as the “base” for assigning seats in the house.
A group of state and local governments, led by New York, went to federal court to question the new policy, as did a group of nonprofits working with immigrant communities. The challengers argued that the memorandum was in violation of both constitution and federal law, and a special district court with three judges agreed. When the District Court prevented the Trump administration from implementing the policy, the administration appealed to the Supreme Court, which agreed in October to expedite its review, given that Ross set a legal deadline on December 31 for submitting the census report to Trump discontinued.
Acting Attorney General Jeffrey Wall argued to the judges on behalf of the government that there was still “considerable uncertainty” about the extent to which the Census Bureau could actually determine how many people were in the United States without authorization. Therefore, he suggested, the court should now avoid any substantive decision and simply remove the lower court decision from the books. This would allow the President, based on the data available, to implement the policy described in the July Memorandum. If politics ultimately resulted in states losing their seats in the House of Representatives – an outcome that is not certain – the challengers could return to court to sue the legitimacy of the policy. But for now, Wall said, the challenger’s claim is too speculative.
Judge Samuel Alito told Wall that he found the attitude of the case “quite frustrating” and noted that the potential impact of excluding people who are illegally in the country from the population base ranged from significant to “much ado about a lot.” little “could be enough. Alito says there are an estimated 10.5 million people living illegally in the United States, which could actually affect the distribution of seats in the House of Representatives. On the other hand, Alito continued, a group of non-citizens whom the administration has been able to identify with some degree of certainty are the 60,000 people in immigration and customs detention centers – a number that is much less likely to alter the distribution of seats. With only 31 days a year left, Alito Wall asked, is there a realistic way that the Census Bureau can shut out all 10.5 million people?
Wall agreed that it was unlikely that the Census Bureau would be able to identify all people in the United States without authorization in time to exclude them from the population base used for the division. He blamed the uncertainty that the challengers filed their lawsuit before the seats were allotted.
Other judges appeared to agree with Wall’s suggestion that the suits came prematurely. Justice Brett Kavanaugh stressed that Wall did not claim that the judges should never consider the challengers’ claims; Instead, Wall only asked the judges to postpone the decision now. Kavanaugh later stated that two different doctrines could speak against the decision of the case: the perpetual doctrine, which requires actual controversy with a specific violation, and the maturity doctrine, which prohibits claims that are filed ahead of time or on hypothetical future damage are based. The two teachings are “identical” for the purposes of this case, Kavanaugh said, because the president’s memorandum does not require the challengers to take action at the moment.
Justice Amy Coney Barrett repeated the point. She asked Barbara Underwood, New York’s attorney general, whether it would be better for the judges to wait and see what categories of non-citizens – for example, people in ICE custody, people in the country who have illegally committed crimes, or people who have made the final have received deportation orders – The president finally decides to expel from the population base.
However, other judges were more skeptical of Wall’s claim that it would be difficult for the Census Bureau to identify and exclude large numbers of people in the United States without authorization. Justice Sonia Sotomayor reminded Wall that the president had asked for information about anyone illegally in the country, and she told Wall that the Census Bureau has been working to collect data from other agencies for over a year. “I don’t see how you can show us that you don’t believe it will be a large number,” said Sotomayor.
Judge Elena Kagan agreed. She asked Wall to explain the uncertainty, noting that the government already had the names of 700,000 non-citizens who had been exempted from deportation under the Deferred Measures on the Arrival of Children Program, as well as about 3.2 million people who are currently in the process of deportation but are not in custody. “We can easily reach four to five million people for whom you have administrative records,” Kagan said.
Underwood and Dale Ho, who argued on behalf of the nonprofit groups, told judges there was a significant risk that the challengers could be harmed by the Memorandum’s instruction to illegally exclude people in the country from the population base. The difference of a few thousand people in a state can mean the difference between winning and losing a seat in the House of Representatives, Ho reminded judges.
Underwood and Ho seemed to admit that delaying a few weeks in determining which categories of non-citizens the president might ultimately exclude from the population base would not be “disruptive.” However, they strongly opposed any suggestion that the court should dismiss the case and have them wait for the seats to be distributed in order to contest the exclusion of people who are in the country without authorization. Ho told the judges that reclassifying the case after the partition would “seriously disrupt” the state restructuring process.
During the relatively short time the judges spent questioning whether the memorandum violated the Constitution or federal law, several judges appeared to agree with the challengers. Barrett told Wall that much of the historical evidence “really goes against your position,” and she later stated that anyone who has been in the country for 20 years, even if he’s here without a permit, is likely to have permanent residence here would.
For his part, Kavanaugh suggested to Underwood that the challengers had made “strong” constitutional and legal arguments that the president could not exclude anyone illegally staying in the country from the population base. But both Kavanaugh and Barrett have raised the possibility that the president might issue a new memorandum that only excludes certain categories of non-citizens from the population base. Pushing back, Ho told the judges that even the narrower categories – like non-citizens in ICE detention centers – were still too broad, and pointed out that the challengers and the courts likely later in the legality of such a memorandum Have to ask a question.
In his counter-argument, Wall urged the judges to resolve the case quickly, stating that the process of submitting information to the President and then to Congress “will all take place on an extremely compressed timeline in January”. However, it was by no means certain that there were five votes in court to follow the path suggested by Wall.
Chief Justice John Roberts began arguing with Wall about whether the Trump administration still needs a decision by December 31 if Ross should send the census report to the president. Roberts noted that this deadline was why the Supreme Court hastened the Trump administration’s appeal.
Wall responded that the government was “not on track” to send the report to the president by December 31, but hopes to give the president at least some data in January. It is not clear what effect this response will have on the court’s timetable for ruling this case.
This post was originally published on Howe on the Court.
Amy Howe, Argument Analysis: Judges appear inclined to postpone the decision on the merits of Trump’s census plan.
SCOTUSblog (November 30, 2020, 5:03 pm), https://www.scotusblog.com/2020/11/argument-analysis-justices-seem-inclined-to-put-off-ruling-on-merits-of – Trump-plan-for-census-data /