The Trump administration faced tough questions from federal judges on Thursday over the president’s directive to exclude undocumented immigrants from census data when apportioning congressional seats.
A three-judge panel grilled the Department of Justice (DOJ) attorney defending the new policy against a legal challenge brought by a coalition of state attorneys general and immigrant rights groups.
The judges, two of whom were appointed by Republican presidents and one by a Democrat, appeared concerned about how the administration would go about excluding undocumented immigrants from the apportionment count, considering the census forms do not include a citizenship question.
Judge Richard Wesley, who was appointed to the 2nd Circuit Court of Appeals by former President George W. Bush, appeared frustrated with the government’s lawyer for not providing more information about how the Commerce Department would go about implementing President Trump’s order from July.
“You’re telling me right now, as an officer of this court, that you’ve received no information with regard to any particular set of figures that the secretary” plans to deliver to the president, Wesley asked during a heated exchange.
Sopan Joshi, a Justice Department attorney, answered that he hadn’t.
Trump issued his presidential memorandum in July, quickly prompting the legal challenges, one filed by state and local officials led by New York Attorney General Letitia James (D) and another by the American Civil Liberties Union (ACLU) on behalf of immigrant groups.
The lawsuit was filed in U.S. District Court for the Southern District of New York but the case is being heard by a panel of three judges, two of whom sit on an appeals court, because it involves a constitutional challenge to the government’s administration of the census.
They are arguing that Trump’s memo is illegal and unconstitutional by violating the requirements that House seats be apportioned based on the total population in each state.
“Once the census has been complete, the president does not have discretion to manipulate the census data to his liking, subtract other kinds of data from the census count, use different kinds of calculations to arrive at a different apportionment number,” ACLU attorney Dale Ho said during Thursday’s hearing. “And if the president can simply revise or alter the census number after the census is complete, then there’s no real limit to what he can’t do.”
The plaintiffs are also arguing that the president’s order has had a “chilling effect” on undocumented immigrants who are being asked to fill out census forms amid the ongoing counting process.
The DOJ is arguing that the lawsuit should be thrown out in part because the assertion of a chilling effect is based on conjecture. Joshi said Thursday that the plaintiffs would have to identify people who had been scared off by the president’s memorandum but would be reassured by the court blocking it for their theory to be sound.
Judge Peter Hall, another George W. Bush appointee on the 2nd Circuit, appeared skeptical of Joshi’s argument, asking him how many people the plaintiffs would have to identify.
“It would have to be non-speculative, whatever the number is,” Joshi responded.
The DOJ is also arguing that any legal challenge against the government’s census tally would have to be brought after it has been completed, since the president’s order only directs the Commerce Department to exclude undocumented immigrants to the “maximum extent feasible” and the plaintiffs are speculating about what that extent will be.
Judith Vale, an attorney with the New York attorney general’s office, argued on Thursday that it’s important for the court to declare the president’s memo illegal before a final count is submitted to Congress.
“There is no hardship for the defendants to resolve this now and get it right the first time,” Vale said.