Justices wary of wading into census immigration dispute

Conservative justices question whether they should issue ruling on apportionment case before Dec. 31

Protesters hold signs at a rally in front of the U.S. Supreme Court after a census-related ruling in  June 2019.  (Bill Clark/CQ Roll Call file photo)
Protesters hold signs at a rally in front of the U.S. Supreme Court after a census-related ruling in June 2019. (Bill Clark/CQ Roll Call file photo)
Posted November 30, 2020 at 2:12pm

Conservative justices on the Supreme Court contemplated punting a ruling on President Donald Trump’s attempt to exclude undocumented immigrants from congressional apportionment during oral arguments Monday in the case.

All six Republican-appointed justices questioned the practicality of making a ruling by the end of the year before Trump actually issues apportionment numbers. The administration has not been able to say how many immigrants it could identify and exclude — potentially too few to affect apportionment at all. The justices could end up tossing lower-court rulings against the administration and letting states and civil rights groups build a case again next year without ruling on whether it violates the Constitution.

“It’s speculative as to how much [the administration is] going to be able to do,” Justice Neil M. Gorsuch said. “Once we’re in that world, then it’s speculative whether there’s going to be any effect on the apportionment, and in that world, we have a standing problem.”

At issue is a memorandum Trump signed in July to exclude undocumented immigrants from census data used to apportion congressional seats. Several states and civil rights groups immediately filed lawsuits over the memo, resulting in three lower-court decisions against the administration.

The standing issue on whether plaintiffs have the ability to bring a case bubbled up repeatedly amid questions about the unknowns in the case: The administration has not said how many immigrants it would be able to identify and potentially exclude from apportionment, or whether their exclusion would actually affect the distribution of congressional seats.

Trump and his allies argue that including such individuals in census figures used to decide each state’s congressional seats would dilute the power of voters in states with few undocumented immigrants.

About 10 million undocumented immigrants live in the United States, according to a 2016 estimate by Pew Research Center. Most of them are concentrated in large states such as California, Texas, Florida and New York.

However, the administration can’t say how many immigrants it would be able to identify and take out of census results, acting U.S. Solicitor General Jeffrey Wall said. A previous Supreme Court ruling prohibits the use of statistical sampling, so Wall said the Census Bureau must individually match immigration records with census responses.

“Until they actually do the comparison, we just won’t know how many identifications we’re able to make and whether that stands to affect the apportionment,” Wall said.

Justices and all parties in the case floated a number of possible subsets of excluded people. They included the tens of thousands now in immigration detention centers, hundreds of thousands currently subject to final deportation orders and hundreds of thousands enrolled in the Deferred Action for Childhood Arrivals program.

Those unknowns led one panel of federal judges in the District of Columbia to rule last Thursday in favor of the administration. While three panels of federal judges previously found the administration violated the Constitution or federal census statute, last week’s opinion found it was too early to rule on the issue.

Should the high court toss Monday’s case, the plaintiffs could end up before it again next year arguing merits Justice Stephen G. Breyer called “very strong.”

The Constitution and the authorizing statute for the Census Bureau make no differentiation between immigrant and native-born residents. Dale Ho, an American Civil Liberties Union lawyer, seized on that point during his portion of arguments.

“No court, no Congress and no executive branch before now have ever thought that undocumented immigrants could be excluded from the whole number of persons in each state,” Ho said.

Trump’s memo also represented a reversal of federal government policy. The Commerce Department has argued since the 1980s that there is a constitutional requirement to count every person living in a state for apportionment purposes. Trump-appointed Justice Amy Coney Barrett pointed out that history generally cuts against the administration position.

Wall tried to differentiate between the text of the census statute and the Constitution, which emphasize residency, and the administration’s preferred definition that stresses a person’s political ties to the country in counting them for apportionment.

“I’m not disputing at all that illegal aliens form ties to the community in the sense you’re talking about, but they’re not the sort of ties that are sufficient to qualify you within the apportionment base,” Wall said.

New York Solicitor General Barbara Underwood pushed back on the idea that the court should uphold the memorandum because the president might have the authority to exclude some subset of undocumented immigrants.

The memorandum tried to exclude all undocumented immigrants, and “an unlawful policy can’t be saved by the possibilities that a lawful policy could be written,” she said. “The question here is whether a blanket policy of not counting undocumented immigrants is lawful.”