WASHINGTON – The Supreme Court appeared likely Monday to let the Trump administration proceed with its plan to exclude some undocumented immigrants from the census count used to apportion seats in Congress before deciding if it’s legal.
With only seven weeks remaining in President Donald Trump’s term, most justices indicated that he may not have the right to exclude as many as 11 million people from the population base, a policy that would cost California and possibly other states seats in the House of Representatives.
But several of the court’s conservative justices noted that down-to-the-wire efforts by the Census Bureau to tally undocumented immigrants could fall short of the president’s goal. If only small groups of them are tabulated, the legal challenge from states and immigrant rights groups could turn out to be “much ado about very little,” Associate Justice Samuel Alito said.
“It’s speculative as to how much they’re going to be able to do,” Associate Justice Neil Gorsuch said, referring to the ongoing Census Bureau effort to exclude undocumented immigrants. “Then it’s speculative whether there’s going to be any effect on the apportionment.”
Some of the court’s liberal justices said Trump’s announced policy could lead to at least several million people being excluded, including those in removal proceedings and, notably, the 650,000 young immigrants protected under the Deferred Action for Childhood Arrivals (DACA) program.
“We can get very easily to 4 or 5 million people who you have extensive administrative records on,” said Associate Justice Elena Kagan.
And even Associate Justice Amy Coney Barrett, Trump’s most recent nominee to the court, noted that “illegal aliens have never been excluded” from counting for purposes of congressional apportionment.
Trump’s policy, announced in July, could affect not only states’ House seats but their electoral votes, as well as the distribution of some $1.5 trillion in federal funds.
If the justices hand him a lame-duck victory – or even if they just vacate a federal district court ruling against him – the result could be a loss of House seats in traditionally Democratic states. Under the plan, states with the highest percentage of undocumented immigrants face the greatest risk. Most of those states, from Nevada to New Jersey, lean Democratic.
However, President-elect Joe Biden is likely to seek to reverse any plan that erases undocumented immigrants from the head count. That could lead to lawsuits from proponents of the plan after Trump is out of office.
“The Biden administration has not adopted this anti-immigrant rhetoric and instead seeks to heal this nation,” New York Attorney General Letitia James said after Monday’s oral argument. “I would hope and am confident that they would include all persons in the count going forward.”
Led by New York, a coalition of 22 states and 15 cities filed suit after Trump issued his July memorandum, and a federal district court ruled in September that the plan was unlawful. The three-judge panel said it served to deter immigrant households from responding to the census count. Two other federal courts in California and Maryland issued similar rulings.
The justices agreed to hear and decide the case quickly because time is running out on the 2020 census process. Commerce Secretary Wilbur Ross’ report to the president is due Dec. 31. Trump has about 10 days after that to report to Congress on the number of House seats allocated to each state.
In broader policy terms, the case puts one last exclamation point on the Trump administration’s more than 400 policy changes aimed at shrinking both legal and illegal immigration channels into the USA. When challenged, it has sought Supreme Court backing for its agenda, including efforts to restrict refugees and migrants dependent on public assistance.
Trump has had limited success since 2017 in defending his immigration policies at the high court. It took three versions for the justices to uphold his ban on travel from a handful of predominantly Muslim nations. Other restrictions aimed at blocking asylum-seekers and building a wall along the southern border won temporary reprieves.
Trump’s efforts to end the Obama administration program protecting young immigrants from deportation and to add a question on citizenship to the 2020 census were struck down in 5-4 rulings written by Chief Justice John Roberts.