WASHINGTON – The Supreme Court will hear arguments on Monday over President Trump’s efforts, in the final days of his presidency, to exclude unauthorized immigrants from the calculations used to allocate seats in the House.
If the court rules on the administration, it would upset the agreement that the census should count all residents, regardless of their immigration status, and could shift political power from democratic states to republican states.
But the matter is riddled with practical complications. Census Bureau officials said they could only produce the required data after Mr Trump left in January. Even if they do, it is not clear that Congressmen would accept what they might consider to be flawed calculations, and President-elect Joseph R. Biden Jr. may try to turn the tide once he does. ‘he takes office, which leads to new prosecutions.
The central question in the case – which counts for the purposes of reassignment to Congress – is fundamental and largely untested.
The Constitution requires congressional districts to be allocated “by counting the total number of people in each state,” using census information. To this end, a federal law requires the president to send Congress a statement indicating the number of representatives each state is entitled to after each decennial census. In the past, these declarations were based on a count of all residents.
In July, Mr. Trump issued a memorandum adopting a new approach. “For the purposes of reassigning representatives after the 2020 census,” the memo reads, “it is the policy of the United States to exclude from the allocation base foreigners who are not in legal immigration status. . “
“Current estimates suggest that a state is home to more than 2.2 million illegal aliens, or more than 6% of the state’s total population,” the memo said, apparently referring to California. “Inclusion of these illegal aliens in the state’s population for distribution purposes could result in the allocation of two or three more seats in Congress than would otherwise be allocated.”
Removing undocumented immigrants from the tally would most likely move seats to older, whiter, and generally more Republican states.
Mr Trump ordered Wilbur Ross, the Commerce Secretary, to provide him with two sets of numbers, one including unauthorized immigrants and the other not. It was unclear how Mr Ross would calculate the second set of numbers, as last year the Supreme Court rejected his efforts to add a citizenship question to the census.
The court case, Trump v. New York, No. 20-366, was brought by two groups of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of defense groups. and other non-governmental organizations.
A three-judge panel of the Manhattan District Federal Court ruled that the new policy violated federal law. Two other courts have issued similar rulings, while one said the dispute is not ripe for consideration.
In an unsigned opinion in the Manhattan case, the panel said the issue before it was “not particularly close or complicated.”
“The secretary is required to provide only one set of figures to the president – namely, ‘the table of total population by states’ under the ‘decennial census’ – and the president is then required to use those same figures to determine the allocation using the equal proportion method, ”the panel wrote, citing the relevant laws.
Much of the Committee’s opinion revolved around whether the plaintiffs had suffered the type of harm that gave them standing to bring an action. He concluded that the new policy reduced the likelihood of undocumented immigrants and others participating in the census, compromising its accuracy.
But the count is over, and this standing theory is now called into question. Before the Supreme Court, the plaintiffs argued that they also had standing because they would be harmed by the revised distribution. Jeffrey B. Wall, the Acting Solicitor General, responded that this second theory was speculative and premature because Mr. Trump did not act.
On the central issue of the case, the administration told judges that the term “persons in each state” can be interpreted as requiring “the permission of a sovereign to remain in jurisdiction.”
In response, Barbara D. Underwood, solicitor general of New York, representing state and local governments, said the administration is asking the court to approve a startling break with the nation’s traditions. “Since the founding,” she wrote, “the population base used to allocate seats in the House of Representatives has never excluded a resident because of their immigration status.
In a separate response, groups represented by the American Civil Liberties Union said the administration’s new policy violated federal statute and the Constitution.
“The president does not have the ‘discretionary power’ to delimit the people included in the actual count to create a separate allocation base to his liking,” the brief said.