The U.S. Supreme Court seemed inclined to take a wait-and-see approach toward President
In an 80-minute telephone argument session, the justices signaled they will move cautiously in a case that could affect the allocation of congressional seats and federal dollars. The administration is in a race to finish the count, and submit the report to Congress, before
Acting U.S. Solicitor General
His argument resonated with several members of the court, including new Justice
“Doesn’t that cut in favor of waiting, that maybe there’s no injury here because we’re not really sure what the contours of the decision would be?” she asked.
Trump laid out the policy in a July 21 memorandum that told the Commerce secretary to send the president a tally that excludes undocumented immigrants, along with a separate set of numbers showing the total population. The Commerce Department houses the Census Bureau.
A three-judge panel said the plan runs afoul of the U.S. Census Act, which requires the Commerce secretary to show the “tabulation of total population by states.” Opponents including New York and the American Civil Liberties Union say that law precludes the secretary from including numbers on undocumented immigrants as part of that report.
But Chief Justice
“I don’t understand why the situation where both sets of figures are submitted in a single document is any different,” Alito said. “It seems like a totally meaningless formality.”
The case marks the last major immigration showdown at the Supreme Court for Trump after a presidential term marked by divisive legal fights.
Critics say Trump is trying to manipulate the numbers at the expense of Democratic-leaning areas with high immigrant populations. The push could mean fewer seats for Texas, California and possibly New York and New Jersey. Trump is seeking to change more than 200 years of practice in a nation that has always counted non-citizen residents, even those in the U.S. illegally.
Even some of the court’s conservative members questioned whether Trump could exclude all undocumented immigrants from the census count.
“If an undocumented person has been in the country for, say, 20 years, you know, even if illegally, as you say, why would such a person not have a settled residence here?” Barrett asked. She told Wall that “a lot of the historical evidence and longstanding practice really cuts against your position.”
The legal challenge is just one of several hurdles Trump will have to overcome to accomplish his goal. With the pandemic slowing the count,
Wall acknowledged the Commerce Department was “not currently on pace” to submit its report by the Dec. 31 deadline. But he said it “remains possible” the department could send Trump some data in January.
Even if Trump can send Congress the numbers, lawmakers could still reject the tally, and Biden might be able to submit a revised report after he becomes president.
The high court could reject the challenge on procedural grounds, leaving open the possibility of another court fight later. Trump contends that opponents don’t currently have “standing” to challenge the plan because they lack a concrete stake in the outcome. Justice
“The key point, I think, is that the memorandum imposes no obligations on the plaintiffs to do anything at this point,” Kavanaugh said.
“It it does seem like it would be more manageable at an earlier stage,” Roberts said.
The court has put the case on a fast track, making a ruling possible by the end of the year. The case is Trump v. New York, 20-366.
(Adds Barrett comment in 13th paragraph)
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