The Supreme Court resumes its public hearings tomorrow, opening a week of lawyers’ debates in five cases. The most important dispute is coming up first on Monday. It involves a long-running controversy over who gets counted in the census. The second hearing of the day involves legal limits on computer searches on the Internet. The “live” broadcasts of the audio portion of the hearings are expected to be offered on C-SPAN.org.
First case tomorrow, starting at 10 a.m.; scheduled to run 80 minutes:
Trump v. New York
Background: For more than 40 years, a conservative political goal – unachieved, so far — has been to stop the Census Bureau from counting undocumented immigrants as part of the U.S. population. The Trump Administration, as part of its broad anti-immigration policy approach, eagerly embraced the idea soon after it came into office in 2017. Now the issue is before the Supreme Court.
From the time the Constitution was written in 1787 and the first census was taken in 1790, the census every ten years has attempted to count everyone living in the United States. The Constitution mandates an “actual enumeration” and specifies that this means the “whole number” of the population. (Until slavery was abolished in 1865, slaves were counted as only three-fifths of a person each.)
The population data gathered in the census has been used, since the beginning, to divide up seats in the U.S. House of Representatives, since seats in that chamber (now, 435) are supposed to reflect actual population (each state, though, gets at least one Representative, however small that state’s population). Once a census is taken, states are advised how many seats each will get in the House; it is then up to the states to draw the districting lines for electing Representatives.
In more modern times, a second key function of the census numbers is to determine each state’s share of billions in federal funds that flow to the states based on population. Currently, those funds amount to more than $700 billion a year, involving well over 100 separate programs.
Thus, the political and financial impact of the census count is obvious: the more population a state is found to have, the more seats it gets in the House and the more federal money it receives. Shifts in population thus have a direct impact on how the states fare: every ten years, a few states gain seats and shares of federal money, and a few lose.
One can make a strong theoretical point about this distribution of political power and money: that is, it shows who is considered to be a part of America’s political community, and thus who has the right to have their interests and desires considered when laws are passed and the federal government takes action. Everyone counted, in other words, is considered to be represented in the House, even if they don’t have the right to vote – such as children, prison inmates, and non-citizens (including undocumented immigrants, who do not have a legal right to be in the country).
The Trump Administration, adopting a conservative goal pursued at least since the 1970s, takes the view that what the census is supposed to count are “inhabitants,” and that term is said to exclude undocumented immigrants because they do not reside legally in the country, no matter how long they have lived here.
The view has a distinct partisan cast to it: undocumented immigrants tend to congregate in the nation’s cities, and in the larger states, and that is where the Democratic Party tends to dominate politically. Counting the immigrants, then, translates into a partisan advantage favoring Democrats, not Republicans.
At first, the Trump Administration tried an indirect way to pursue its goal: it decided to add a question on the census form about who was, or was not, a U.S. citizen. Attacked by larger states and cities and their allies, this approach failed in the lower federal courts, largely because it would tend to discourage non-citizen immigrants from answering the census, for fear of being discovered and then deported, and thus resulting in a national under-count of the whole population.
In late June last year, the Supreme Court blocked that maneuver, finding that the Administration had not given an adequate reason for asking the question.
Although the Court left President Trump with an option of trying again, the President in July chose to move directly to block the count of undocumented immigrants. He ordered the Census Bureau to produce two population totals, one that counted those non-citizens, and one that did not. His aim was to use the one excluding those immigrants when he sent figures to Congress to control the allocation of House seats.
A lower federal court ruled that the President’s approach would violate the federal law governing how the census is conducted. (Later, a different federal court reached the same result, but instead ruled that the approach would be unconstitutional as well as violate the census law.)
Questions before the Court: Did the President act illegally or unconstitutionally in moving to exclude undocumented immigrants from the census total, for purposes of allocating House seats? A threshold issue the Administration has raised is whether those who challenged the President’s order had the right to sue over the issue.
Significance: The future shape of the House of Representatives, and the division of shares in political power there between the two major parties, will be directly influenced by how this case comes out. For example, both California and New York – two states where the Democrats are dominant – very likely would lose seats as a result, and smaller, Republican-dominated states would gain.
With Democrats’ control of the House significantly reduced in the wake of the November 3 congressional election, such a shift of seats might actually switch control of that chamber to the Republicans.
Beyond the impact on the House, the number of seats each state has in that chamber also determines part of the total of votes it would have in the Electoral College, which is the entity that actually chooses the President following elections every four years. It is generally thought that the smaller (and, usually, more Republican) states already have an advantage in the Electoral College, with each state getting two votes there because of its two Senators; a shift in electoral votes based on House seats could add to that perceived advantage.
At a more fundamental level, a decision to uphold the President’s approach would mark a profound theoretical shift: it would, for the first time in the nation’s history, exclude upwards of 11 million people as being a part of the American body politic, with strong racial or ethnic implications.
Although the Court is considering the case on an expedited schedule, with the Administration asking it to reach a decision by the end of December, there is no hard-and-fast guarantee that the Court will actually be able to do so. If it does not, and the case is still undecided when President-elect Biden is sworn in on January 20, the new Administration might withdraw the maneuver, leaving nothing for the Court to decide.
Another complication, which could affect how the Justices view the controversy, is that the pandemic due to the corona virus has interfered with the counting process, so the Census Bureau says it may not be able to deliver the census results by year’s end.
It is also possible, but seems unlikely, that the Court would rule – at President Trump’s request – that the challengers had no legal right to sue. That would have the practical effect of leaving the Trump policy intact, at least for the time being. Whether the new Biden Administration would be able to do anything about that after it takes office seems unclear at this point.
Second case tomorrow, starting when the above case concludes:
Van Buren v. United States
(For space reasons, this account is abbreviated.)
The Court in this hearing will explore the meaning of a federal law, first passed in 1984 and amended several times since then, that makes it a crime to hack into a computer – that is, to make unauthorized use of the device or the data it displays.
The lawyers who took this case to the Supreme Court argued that the law, while aimed at criminal hackers, potentially is being read too broadly, and thus could apply to nearly everyone who uses a computer with permission from someone else – such as a worker who uses a device while on the job.
The specific legal question is a technical one about how to interpret the clause that makes it a crime for someone who obtains access to a computer in a legal or authorized way, but then uses the device in ways that were not permitted. (The law has a potentially wide sweep because it applies to any computer that is used in a way that affects commerce – so it could apply any time a computer is used to visit the Internet.)
Some lower courts interpret the law to mean that, any time the user seeks information “for an improper purpose,” that is enough to be a crime. Other courts disagree, ruling that the law only applies when the information obtained is itself something that a user should not have obtained.
To illustrate their claim about the potential sweep of this provision, the lawyers representing a Georgia man convicted under the law said the “improper purpose” approach could make it a crime for a worker in an office to use the desk computer to look up sports scores – something of no real concern to his bosses.
The case involves Nathan Van Buren, a policeman in Cumming, GA. An FBI “sting” operation turned up evidence that he was using access to the Internet and a confidential police database to look up a license plate number that he then gave to a local resident in return for a personal loan. In his job on the force, he was authorized to look up such numbers, but he was convicted of doing so for an improper purpose – to get the loan.
He was found guilty and sentenced to 18 months in prison, and he appealed to the Supreme Court after an appeals court upheld his conviction and sentence. The federal government is defending that result and the lower courts’ broader interpretation of the law.
The Court will hear two more cases on Tuesday.