The Supreme Court on Friday declined to immediately weigh in on the legality of President Trump’s plans to exclude immigrants living the country without legal permission from the 2020 Census figures used to award states seats in Congress.
Finding that a ruling on the merits of the case would be premature, the high court’s conservatives, in a 6-3 decision, set aside a lower court order that had blocked a proclamation Mr. Trump issued in the summer to change the apportionment process for U.S. House of Representatives districts.
The conservatives on the court said the case “is riddled with contingencies and speculation that impede judicial review,” citing the uncertainty over which unauthorized immigrants the Trump administration will be able to remove from the apportionment figures.
“At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature,” the majority wrote in an unsigned opinion.
Justice Stephen Breyer, an appointee of President Bill Clinton, declared Mr. Trump’s proposed policy unlawful in a dissenting opinion supported by the two other members of the court’s liberal wing, Justices Sonia Sotomayor and Elena Kagan.
While Friday’s ruling technically allows Mr. Trump to continue his plans, its practical impact may be limited as the Justice Department has acknowledged it is “very unlikely” that Census Bureau officials will be able to identify and remove all unauthorized immigrants from the apportionment calculations before the incoming Biden administration takes office.
The U.S. government has always counted most of the country’s residents, including non-citizens without legal status, for the purposes of allocating congressional seats. The 14th Amendment requires House seats to be awarded after the government counts “the whole number of persons in each State.” The constitutionally mandated process occurs every 10 years following the census.
In his July memo, Mr. Trump said that counting unauthorized immigrants in congressional redistricting undermined the “the principles of representative democracy” because it granted states “political influence” based on their undocumented residents. Without explicitly naming it, Mr. Trump cited California, which he estimated would be awarded two or three more House seats due to its undocumented population, the largest in the country.
The Republican-appointed court majority said Mr. Trump’s effort “may not prove feasible to implement in any manner whatsoever” because of the uncertainty surrounding the administrative records the government could compile on undocumented immigrants before the December 31 deadline the Commerce Department has to send the apportionment numbers to the president.
The conservative justices said the administration should be allowed to continue the legal process, which includes the president sending the apportionment figures to the Democratic-led House after getting the report from the Commerce Department. “In the meantime,” the majority wrote, “the plaintiffs suffer no concrete harm from the challenged policy itself.”
In his dissent, however, Breyer said that waiting for Mr. Trump to submit the figures to Congress “risks needless and costly delays in apportionment.”
Breyer said he would have ruled against Mr. Trump’s plan, noting that the administration has said it has continued looking for ways to exclude from the apportionment calculations certain categories of unauthorized immigrants, including U.S. Immigration and Customs Enforcement (ICE) detainees, young adults enrolled in the Obama-era Deferred Action for Childhood Arrivals (DACA) program, and those with final deportation orders.
Removing these groups of people from the redistricting process, Breyer added, would have tangible implications on the allocation of House seats and federal funds to states.
“Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed,” Breyer wrote.
Breyer said Mr. Trump’s decree contradicted the legal requirement that “the whole number of persons” in each state must be counted for congressional apportionment purposes.
The Departments of Justice and Commerce, which administers the Census Bureau, did not respond to requests for comment.
The American Civil Liberties Union, one of the groups that challenged Mr. Trump’s apportionment memo, pledged to sue the government again if it moved forward with its plans to omit undocumented immigrants from the redistricting process.
“This ruling does not authorize President Trump’s goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives. The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress,” Dale Ho, the lead ACLU attorney in the case, said in a statement. “If this policy is ever actually implemented, we’ll be right back in court challenging it.”
