In a significant – even if temporary – win for President Trump in his waning days in office, the Supreme Court on Friday allowed the Trump Administration to go ahead with an attempt to exclude up to 4 or 5 million undocumented immigrants from this year’s census count. The vote appeared to be 6-to-3.
If the Trump policy actually gets turned into a workable plan, which is in doubt now, and if it survives potential future lawsuits and the arrival of the new Biden Administration, it could have a major impact on states and cities where large numbers of such immigrants now live.
Some states could lose seats in the House of Representatives, with Democratic seats declining and Republican seats rising, perhaps even enough to shift which party controls the House. In addition, some states and cities could lose billions in federal funds that would go elsewhere, based on census totals.
Whatever its real-world impact, the decision provided President Trump with the opportunity to implement a key part of his four-year-long attack on immigrants, whether legal or illegal. Two years ago, the Court allowed him to ban all Muslim travelers from designated nations where they are in a majority of the population.
The Court’s ruling, which basically found that it was too early to judge the validity of the Trump census plan under federal law or the Constitution, came in a seven-page opinion that no Justice signed. It took no position on the legal questions, other than that the challengers had gone to court prematurely.
That outcome appeared to have the votes of six Justices – the Court’s newly consolidated bloc of conservatives. The Court’s dwindling bloc of three liberal Justices dissented, saying they would strike down the Trump plan right now, concluding that it clearly violates the 1929 census law and is causing predictable harm to the challengers.
Undocumented immigrants have been counted in every census taken since there were federal laws on who could enter the nation legally. There apparently are now between 10 and 12 million non-citizens who entered the country without legal permission and have stayed.
The Constitution itself and a 1929 law that controls how the census is to be taken every ten years require that there be an “actual enumeration,” meaning everyone living in the United States as of April 1 in the census year.
For the first time in history, President Trump and his aides decided that anyone who is not legally in the country, and thus potentially subject to being deported, is not actually an “inhabitant” and should be excluded from the political community that is represented nationally in the House of Representatives.
The American political concept of representation has never excluded anyone, whether or not they were citizens and whether or not they had the right to vote for public officials; children and prison inmates, for example, always get counted even though they can’t vote. Even slaves were counted in the census when slavery existed, from the founding era up through 1865, although each slave was counted as only 3/5ths of a person.
President Trump first attempted to keep undocumented immigrants out of the census by attempting to ask everyone in the country whether they were citizens – a move that was understood to lead to an undercount of non-citizen, who were thought likely to refuse to respond for fear of being discovered and then deported. The Supreme Court last year found the reasoning behind that approach to be flawed.
The President then switched tactics, ordering census officials to come up with two population counts: one of everyone, the usual mode, and one that excluded all undocumented immigrants. The second of these was to be sent to Congress for use in deciding how to divide up among the states the 435 seats in the House. (The 435 total does not itself change after a census.)
Under the census law, the President is supposed to be given census totals as of December 31 this year. That is the supposed deadline for the two lists he ordered, although the Census Bureau has said it is not certain it can meet that deadline.
The next step in the process is supposed to occur by next April 1, when the Census Bureau is to send the states the number of House seats to which they are entitled, based on population. That will then trigger a new round of state legislatures drawing new districts, each as close as possible to equal in numbers of people.
Some legislatures, as has happened traditionally, are expected to use that process to try to benefit their own political party through the process known as “gerrymandering.” The Supreme Court ruled last year that the Constitution imposes no barrier to that practice, which involves sorting people into districts according to how they affiliate with a political party.
After the Supreme Court this morning ordered lower courts to dismiss as premature the challenges to the Trump plan, lawyers for the challengers said they would file new lawsuits, presumably in January, to try again to ensure the counting of everyone. The Court’s majority opinion clearly anticipated that there would likely be such challenges.
For the time being, the initiative remains with the Trump Administration. The President presumably will continue to apply pressure on the Commerce Department (which includes the Census Bureau) to give him the two lists, if not this month but at least early enough in January to allow him to send the projected House figures to Congress before he leaves office on January 20.
While Congress is expected to formally recognize Joe Biden as the next President when it counts electoral votes on January 6, there is as yet no legal maneuver the incoming administration can take to stop the Trump plan. A government not yet in office has no legal basis on which to interfere with something happening in a government still in power.
Once inaugurated on January 20, new President Biden would then be in a position to try to challenge further steps in implementing the Trump approach. There is no doubt that such an attempt would be made, because of the nearly universal understanding that the Trump plan would have severe political consequences for the Democratic party.
Meanwhile, the Supreme Court majority opinion will be parsed by lawyers who want to make new challenges, to see just what proof they would need to provide to assure that such new claims satisfy that majority as properly filed.
The majority relied on two limiting concepts in deciding to order these challenges dismissed: first, that the challengers had not yet shown that they would actually be harmed by the degree to which the census can be calculated without including undocumented immigrants, and that the possible harms were not yet “ripe” for a court decision.
“We express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time,” the majority concluded.
That opinion contained the heading that it had been issued “per curiam” – meaning “by the Court” as a whole, without an individual Justice as the author. Joining in that result presumably were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Justice Stephen G. Breyer wrote a 21-page dissenting opinion, which was joined by Justices Elena Kagan and Sonia Sotomayor.