US Law Week

Top Court Signals Wait-and-See Approach in Trump Census Case (2)

Nov. 30, 2020, 9:00 PM

The U.S. Supreme Court seemed inclined to take a wait-and-see approach toward President Donald Trump’s push to exclude undocumented immigrants from the census, as several justices suggested it’s too soon to consider striking down the policy.

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 Joe Biden takes over the presidency on Jan. 20.

Acting U.S. Solicitor General Jeffrey Wall said that for practical reasons the administration is now working to identify categories of people, such as those in federal detention, rather than trying to omit all of the estimated 10.5 million undocumented immigrants. Wall urged the court to hold off ruling on the Trump policy, saying it wasn’t clear that effort would have any impact on the allocation of congressional seats.

His argument resonated with several members of the court, including new Justice Amy Coney Barrett.

“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.

‘Gag Order’

But Chief Justice John Roberts told New York Solicitor General Barbara Underwood that opponents were seeking a “gag order” on the Commerce secretary. And Justice Samuel Alito bristled when Underwood said the Commerce secretary could send the president information about undocumented immigrants in a separate report.

“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.”

Impending Deadline

The legal challenge is just one of several hurdles Trump will have to overcome to accomplish his goal. With the pandemic slowing the count, Census Bureau officials have told the Commerce Department they can’t produce the state population totals until after Trump leaves office, according to a New York Times report.

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 Brett Kavanaugh suggested he was sympathetic to that argument.

“The key point, I think, is that the memorandum imposes no obligations on the plaintiffs to do anything at this point,” Kavanaugh said.

But Justice Elena Kagan said any challenge pressed after the allocation of congressional seats would be “very time-crunched.” And Roberts said that court case would be “like having to unscramble the eggs.” And

“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)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Jon Morgan at jmorgan97@bloomberg.net

Elizabeth Wasserman

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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