Conservative justices seem prepared to let Trump proceed with immigrant census plan for now

The Supreme Court on Monday seemed reluctant to issue an immediate ruling that would halt President Trump’s plan to count — and later subtract — immigrants residing in the U.S. illegally from the once-per-decade population count. 

The court, which has a new 6-3 conservative majority due to Trump’s three appointments, appeared to signal that it would let the Trump administration tally at least some of the country’s undocumented population as part of the 2020 census.

But a majority seemed inclined to defer future challenges over how that data could be used to determine House seats among the states, a key part of taking the census and a motivator in the Trump administration’s desire to exclude undocumented workers from census counts.

If the Trump administration’s position was upheld, it would likely have the effect of reducing House seats from states such as California that have voted Democratic in recent elections.

The question of whether Trump can lawfully exclude the undocumented population from the census may be more fully litigated in coming weeks.

But on Monday, the court’s liberal justices — and even some of its more conservative members, including the recently confirmed Justice Amy Coney Barrett — appeared unpersuaded by the government’s defense of the president’s approach.

“You know, as Justice [Stephen] Breyer said, a lot of the historical evidence and longstanding practice really cuts against your position,” Barrett said during a series of tough questions she put to acting Solicitor General Jeffrey Wall, who argued the case on the Trump administration’s behalf. “You concede that illegal aliens have never been excluded as a category from the census?”

The court’s apparent reluctance to move swiftly to block Trump’s plan reflected, at least in part, some of the practical difficulties his administration faces in attempting to implement the presidential memorandum he issued in July that set the policy in motion.

Trump’s memorandum marked his administration’s second attempt to exclude undocumented immigrants from the U.S. census. The Supreme Court struck down the first effort, which involved inquiring about census respondents’ citizenship status.

In response to the ruling, Trump in July directed Commerce Secretary Wilbur Ross to send two sets of census data to the president: one that reflects each state’s population, including noncitizens, and another dataset that would allow for the exclusion of undocumented immigrants from the apportionment base.

Trump’s memorandum cites California — though without identifying it by name — as an example of a state that has unjustly benefited from its large share of undocumented residents, which is estimated at around 2.2 million, or more than 6 percent of its total population. Trump’s memo indicates that his plan could result in the state losing two to three seats in the U.S. House.

“States adopting policies that encourage illegal aliens to enter this country and that hobble federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives,” Trump’s memorandum states.

The plan sparked immediate legal challenges from nearly two dozen states plus Washington, D.C., and a coalition of nongovernmental organizations. In addition to establishing congressional representation, the amount of funding states receive under various federal programs may also be tied to the state’s raw census number.

In September, a three-judge panel of a New York-based federal district court ruled against Trump’s plan, finding that Trump had unlawfully exceeded his authority over the census. The court blocked the administration, though not the president himself, from including information about undocumented immigrants in the president’s January apportionment report to Congress, which prompted the administration’s appeal to the Supreme Court.

Much of Monday’s argument concerned the practical difficulties involved in identifying the number of undocumented residents who completed the census and would thus be excluded from the apportionment base under Trump’s plan. 

Depending on the government’s success rate, the dispute could be “quite important” or “much ado about very little,” said Justice Samuel Alito, one of the court’s most conservative members. He said the high- and low-end figures contained in the court record range from more than 10 million undocumented immigrants being identified for exclusion from the population count to around 60,000.

“There are only 31 days left in the year,” Alito said to Wall, the Justice Department attorney. “To exclude the 10.5 million seems to me a monumental task, to do that without sampling, to take 300 million plus names and determine individually for each of those people whether they are lawfully in the United States.”

“And I would think you would be able to tell us whether that remains a realistic possibility at this point,” he added.

Wall said the eventual number would “fall in the middle” of the upper and lower figures that Alito cited. But he said the government would be unable to provide a more specific number until the master census file is “cleaned up and ready to go, and we actually run the models in a few weeks.”

“The simple fact is that the experts don’t know,” he added.

The consensus view among the conservative-majority court seemed to favor giving the administration more time to process the raw data.

The justices also seemed to leave the door open to future legal challenges once a specific undocumented population had been identified for exclusion from the apportionment base. If that litigation were to extend beyond President-elect Joe Biden’s inauguration on Jan. 20, the Justice Department might be expected to shift positions. 

Some of the court’s more liberal justices on Monday seemed open to ruling against the Trump administration more quickly, without waiting for the government to submit a number or categories of undocumented immigrants for exclusion.

“The question that seems to be at the nub of what many of my colleagues are asking about is can and should we rule that simply not counting illegal aliens because they’re undocumented, that that is a violation of the statute and the Constitution?” Justice Sonia Sotomayor asked Dale Ho, an attorney for the American Civil Liberties Union who argued against the Trump plan. “Is that enough relief to you?”

Updated at 4:13 p.m.