President Donald Trump’s efforts to exclude undocumented immigrants from apportionment will face an uphill battle at the Supreme Court next month, legal experts said.
The case could influence the distribution of a half-dozen or more congressional seats next year, as the administration seeks to change how the nation has calculated them for its entire history. On Friday, the justices set arguments in the case for Nov. 30. This just days after allowing the administration to end the 2020 census early and pursue an end-of-year deadline for those apportionment results.
The Trump administration brought the case to the Supreme Court after a special panel of New York federal judges ruled the effort to exclude undocumented immigrants violated federal law.
Vermont Law School professor Jared Carter said the administration seeks permission to overlook a marker of one of the country’s “original sins,” counting enslaved people as three-fifths of a person in apportionment.
“They're asking the courts to ultimately conclude, essentially to ignore, what I think is the plain meaning of both the Constitution and the federal statutes at issue that talk about people," Carter said. "And to ignore the fact that we fought a civil war and passed the 14th Amendment to prevent the very sort of discrimination, parsing the definition of personhood, that the administration wants to do now.”
Trump and the administration have argued that including undocumented immigrants in apportionment results inflates the say of voters in California and other immigrant-rich states at the expense of Republican-leaning states with more modest immigrant populations, like Alabama.
The administration has also argued that the president has the authority to alter the apportionment numbers — pointing to a 1992 Supreme Court case called Franklin v. Massachusetts, where the Supreme Court approved the administration’s use of Defense Department numbers to attribute troops deployed abroad back to their home states.
Both Carter and the lower court in its ruling against the administration said that different issues are at play here. The issue in the other case, Carter said, was where to count those people, not whether they count at all.
“That’s just factually entirely different than eliminating whole classes of persons’ personhood essentially based on their immigration status,” Carter said.
Census results are also used in legislative mapmaking, guiding $1.5 trillion in federal spending each year and thousands of private business decisions.
The administration’s efforts and arguments would reverse decades of federal government policy and court positions about who should be included in apportionment.
Carter said he’s unsure how a Justice Amy Coney Barrett would impact the case. Senate Republicans have put her nomination on track for a confirmation vote before the end of the month, which would place her on the court in time for the Nov. 30 arguments.
“There’s this real tension here” with the deference that Barrett’s model, the late Justice Antonin Scalia, had for executive decisions, Carter said.
“If she is committed to this idea of textualism and originalism it would seem to me it is very hard to rule in the administration’s favor,” he said.
A shortened count
After Trump in July signed the memorandum to exclude undocumented immigrants from census results, several court challenges followed. The memo built on years of anti-immigrant rhetoric and efforts to minimize their role in census results.
After issuing the memorandum, the administration dropped its request for Congress to extend the deadline to deliver apportionment results from the statutory Dec. 31 to the end of April. The original request was prompted by many operations the Census Bureau had delayed due to the coronavirus pandemic.
Professional staff at the agency have warned that a shortened count could be unacceptably inaccurate. They wanted to continue counting until the end of October and use the next five months to tabulate data, according to emails revealed in court filings.
But last week, the Supreme Court allowed the administration to wind down the in-person counting operation. The administration stopped the census count early Friday morning, with the intent to deliver results by the end of the year.
Florida State University College of Law professor Michael Morley cautioned against reading too much into the high court’s decision to allow the administration to wrap up the count. He pointed out that the Supreme Court shies away from administrative particulars, such as how to conduct the census or whether it is sufficient, in favor of more concrete legal issues.
“I think that's something the court would be much more comfortable coming to a definitive ruling on, that wouldn't be seen as improperly intruding into subjective political administrative judgments, but rather that would be more traditionally interpreting and applying the law,” Morley said.
Last month, the lower federal court found that Trump could not exclude undocumented immigrants from apportionment because they are “persons” as defined by the law governing the census process.
“[H]owever ambiguous the term may be on the margins, it surely encompasses illegal aliens who live in the United States — as millions of illegal aliens indisputably do, some for many years or even decades,” the opinion said.
Democrats in Congress and advocacy groups argued the administration sought an early end to the count in order to control the apportionment process, regardless of who wins the presidential election next month.
While the administration has asked for the court to rule on the issue by the end of the year, there’s also the possibility the justices could punt the issue, said Paul Smith, vice president of the Campaign Legal Center. That would mean the case would have to wait for a state to be harmed by the new apportionment, Smith said, if any can make the case.
There also are open questions about exactly how the administration will figure out which census respondent is undocumented or not, Smith said. That, in addition to the fact that results may only affect a handful of congressional seats, means “it’s more of a fight over political symbolism than it is about practicality.”
“The Trump people like it because it shows they’re continuing to try to treat undocumented people as nonentities that should not be given any kind of recognition even in a count,” Smith said.