Opinion evaluation: Court docket tosses problem to Trump’s plan to exclude unauthorized immigrants from congressional reapportionment

Argument analysis: Justices seem inclined to put off ruling on merits of Trump’s plan for census data

Posted on December 18, 2020 at 2:00 p.m. by Amy Howe

The Supreme Court ruled Friday that it was too early to clarify the legality of the Trump administration’s plan to exclude people who are illegally in the country from the state breakdown used for the House seat distribution. The decision ends, at least temporarily, the legal battle in which the President’s plan is being challenged. However, the ruling that the court’s three liberal judges opposed leaves open the possibility that the challengers could return to court if the Trump administration implements the plan in their final month in office.


According to the Constitution, the United States conducts a census every 10 years to determine its population. It then determines how many seats each state has in the House of Representatives. Once the census is complete, the house is divided into two steps. First, under federal law, the Minister of Commerce is required to submit a report to the President by December 31st, which includes the “listing of the total population by state … as required for the allocation of seats in the House”. Second, by January 10, the president must send a report to Congress that includes “the total number of people in each state” as determined by the census 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, President Donald Trump stepped down from this practice, announcing that the total population used to calculate the number of representatives for each state would not include people living in the United States without a permit. In a memorandum, Trump ordered Secretary of Commerce Wilbur Ross to provide him with two sets of numbers for each state: the total population as determined by the 2020 census; and the total population excluding “as far as practicable” unauthorized immigrants. The second sum would then become the “base” on which Congress divides the seats in the House. Using a population base that excludes unauthorized immigrants could result in states with large immigrant populations losing house seats while states with small immigrant populations receiving seats.

Trump’s memorandum prompted two different groups of challengers – a group of state and local governments led by New York and a group of nonprofits that work with immigrant communities – to go to court arguing that the memorandum is against the constitution and that Federal law violates. A special district court with three judges banned Ross from including the information necessary to implement the memorandum in his year-end report to the president. The Supreme Court then agreed to expedite the Trump administration’s appeal in the fall.

The opinion of the court

In an unsigned statement, the majority stated that the challenger’s case is “full of contingency and speculation that will hamper judicial review”. While Trump wants to exclude unauthorized immigrants from the grassroots, the majority of respondents believe that it is practically uncertain whether the federal government will be able to do so without resorting to estimates – which the Constitution does not allow. A 2019 Supreme Court ruling in a previous census case prevented the Trump administration from including a citizenship issue in the census. Therefore, any attempt to exclude unauthorized immigrants from the redistribution calculation would be largely based on non-census data. At the hearing on November 30th, Acting Attorney General Jeffrey Wall told the judges that as of this morning, Census Bureau officials “have no idea how many illegal aliens they can identify, let alone how many and where they are Focusing on the breakdown could affect. “

The majority pointed to this uncertainty when they refused to decide on the legality of Trump’s plan. While there is broad consensus that the Trump administration “cannot implement the memorandum feasibly” by excluding anyone illegally residing in the United States, the majority emphasized that it is still unclear which unauthorized immigrants the president will ultimately end up with would exclude from the base or what the effects of those exclusions could be. As a result, the challengers have not yet suffered any real harm, the majority added: The district court order “shows that the cause of harm to plaintiffs is the actions the secretary or president might take in the future.”

“At the end of the day,” the majority concluded, the uncertainty surrounding the challenge suggests that it is too early for the courts to act. The majority made it clear that this did not compromise the merits of the challengers’ claims, but “only that they are currently unsuitable for a decision”. This leaves the door open to any state losing representation in Congress due to Trump’s plan to go back to court at the end of the reallocation process.

The contradiction of the liberal judges

In a 20-page statement from Judge Stephen Breyer, joined by Judges Sonia Sotomayor and Elena Kagan, the dissidents stressed that the Trump administration had admitted that it wanted to implement the memorandum whenever possible and that the challengers would be harmed will. “With uncomplicated application” of the court proceedings, according to Breyer, the challengers would therefore have a legal right to sue.

In addition, Breyer added, he would rule on the merits of their claims on behalf of the challengers, as the memorandum violates federal laws that govern the conduct of the census. Breyer noted, among other things, that federal law requires that the apportionment base include “the total number of people in each state.” “The usual meaning of” persons “,” wrote Breyer, “naturally includes foreigners without legal status. Breyer also stressed that the census never “excluded people based solely on immigration status” but instead looked for a person’s place of residence to see if they should be counted.

Breyer concluded that in 1929 Congress had enacted census legislation to “create cabin discretion and eliminate opportunities for political game.” “History shows that this approach has served us well overall. Deviating from the text is an open invitation to discretion to gain an electoral advantage. “

Ross’ report to the president is due by the end of 2020. The president must submit his state breakdown to Congress by January 10, just 10 days before leaving office. If Trump continues his plan, judges may revisit these issues in 2021.

This post was originally published on Howe on the Court.

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Posted in Trump versus New York, Featured, Merits Cases

Recommended citation:
Amy Howe, Opinion Analysis: The court questions Trump’s plan to exclude unauthorized immigrants from redistribution in Congress.
SCOTUSblog (December 18, 2020, 2 p.m.), https://www.scotusblog.com/2020/12/opinion-analysis-court-tosses-challenge-to-trumps-plan-to-exclude-unauthorized-immigrants – out-congress-reallocation /


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