In a crucial case that could help determine the balance of power in Congress for the next decade, acting Solicitor General Jeffrey Wall admitted to the Supreme Court Monday that the Trump administration probably would not succeed in excluding every undocumented immigrant living in the United States from being counted in the 2020 census. Nevertheless, he argued, “[T]here are good reasons … why the entire category of illegal aliens shouldn’t be thought to qualify under the inhabitancy test.”
“As history, precedent, and structure indicate, the President need not treat all illegal aliens as ‘inhabitants’ of the States and thereby allow their defiance of federal law to distort the allocation of the people’s Representatives,” Wall wrote in a brief filed on behalf of the federal government ahead of Monday’s oral arguments in Trump v. New York, stemming from the state’s efforts to block Trump’s determination to count only U.S. citizens in the 2020 census. “To the contrary, that an alien lacks permission to be in this country, and may be subject to removal, is relevant to whether he has sufficient ties to a State to rank among its ‘inhabitants.’”
The question of whether or not the president has the legal authority to exclude undocumented immigrants from the official census data — as Trump set out to do in a policy memo issued this summer — is at the heart of the case the Supreme Court heard Monday.
Wall argued that “it’s the sovereign’s prerogative to define the political community.”
So far, three lower courts have disagreed, siding with opponents of Trump’s order, who cite more than two centuries’ worth of precedents for counting the total number of people living in a state at the time of the census, regardless of their immigration status, to calculate the “apportionment base” that determines the distribution of members of Congress and the allocation of federal resources.
Article I of the Constitution requires that a census be conducted every 10 years for the purpose of allocating seats in the U.S. House of Representatives to the various states based on population counts in each state. Per the U.S. Census Bureau, the apportionment results from the 2020 latest census “will determine the amount of political representation each state will have in Congress for the next 10 years.”
Both Article I and the the 14th Amendment mandate that House seats be allocated based on “the whole number” of persons in each state, which, since the first census was conducted in 1790, has been read to include all “inhabitants” or “usual residents” regardless of immigration status.
“The framers wanted a system that could not easily be manipulated. So they decided to count just the persons living in each state,” New York Solicitor General Barbara Underwood told the court. “The policy here would for the first time in this nation’s history reject that choice.”
Underwood hinted at Trump administration’s record of imposing a wide variety of strict anti-immigrant measures, stating that “the government can do many things to induce undocumented immigrants to leave, but they cannot declare them to be gone, when in fact they are here and likely to remain.” Trump’s policy, she argued, “ignores the undisputed fact that millions of undocumented immigrants have lived here for decades and have substantial community ties. Their undocumented status does not erase their presence.”
“You know all of those arguments, and I think they’re fairly strong ones,” Justice Stephen Breyer, part of the liberal minority on the court, told Wall. “They are persons, aren’t they?”
But Wall also faced skepticism from Amy Coney Barrett, Trump’s recently confirmed conservative appointee.
“A lot of the historical evidence and a lot of the longstanding practice really cuts against your position,” Barrett told the acting solicitor general. “You can see that illegal aliens have never been excluded from census.”
Wall conceded that “no president has ever done this before,” but he insisted that “doesn’t mean they can’t do it.”
Barrett and other members of the court’s conservative majority, however, seemed to indicate that they are in no rush to issue a ruling on the legal merits of Trump’s policy memo. The justices seemed to focus instead on the narrow question of whether the Trump administration could realistically accomplish the memo’s stated goal during its final weeks in office, in light of various logistical hurdles — including the COVID-19 pandemic and Supreme Court’s decision earlier this year which blocked the administration from including a citizenship question on the census form. Instead, the process of determining how many people to exclude from each state’s population count has involved collecting all available data on undocumented immigrants from various government agencies, such as Immigration and Customs Enforcement, Social Security Administration and others, and checking it against census responses. Wall noted that this process provided the U.S. Census Bureau with reliable data on the tens of thousands of people in ICE custody at the time of the census, but acknowledged that other segments of the undocumented population were much harder to account for.
Trump’s July memo had called for the Secretary of Commerce to provide the president with two separate data sets by December 31, one with the total number of U.S. residents counted by the 2020 census including undocumented immigrants, the other without. That data would then be used by Trump to deliver the final apportionment count to Congress in the new year which, per his memo, would exclude undocumented immigrants “to the extent feasible and to the maximum extent of the President’s discretion under the law.”
In fact, Wall told the court in his opening statement that while the Department of Commerce and the U.S. Census Bureau are still working to provide “at least some” of the data requested in that memorandum to the president in January, the government is not currently on track to complete what Samuel Alito described as its “monumental task” by that year-end deadline.
Dale Ho, director of the ACLU’s Voting Rights Project, who presented arguments on behalf of several immigrant and civil rights groups, urged the court against waiting for a post-apportionment challenge to issue a ruling on Trump’s policy, arguing that “the difference of a few thousand people in a state can mean the difference of gaining or losing a seat.”
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