January 26, 2021

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Trump White House’s census power grab is a hard Supreme Court sell. Here’s why.

There is a big census case before the United States Supreme Court that could determine the balance of power in the House of Representatives. Yes, it is déjà vu all over again.

Like last year’s case dealing with whether or not the Trump administration could add a citizenship question to the census in order to enforcing the Voting Rights Act, the Supreme Court should put the kibosh on the Trump administration’s latest attempt to use the census to harm immigrants and states with sizable immigrant populations. In this case, Trump is arguing that he has the power to order Secretary of Commerce Wilbur Ross to provide him with a report that excludes unauthorized immigrants from the total population counts used to allocate congressional seats to the states.

The justices were dubious of the Trump administration’s claims during oral arguments. They focused most of their time on procedural and timing issues.

The justices were dubious of the Trump administration’s claims during oral arguments. They focused most of their time on procedural and timing issues. At least a few justices suggested that they push pause on the case and wait until the administration can figure out how Trump’s request would even work — or when it could get the data together.

If the Trump administration is unable to come up with a way to comprehensively identify unauthorized immigrants, the whole exercise may be much ado about nothing — for both sides. Trump won’t be able to influence congressional seats, and states won’t be able to prove they are being harmed by it.

Justice Amy Coney Barrett highlighted this issue during oral arguments. She questioned whether the data available even shows the number of seats would in fact change. “Doesn’t that cut in favor of waiting,” she asked, “that maybe there’s no injury here because we’re not really sure what the contours of the decision would be?”

Time is running very short regardless. Under federal law, the Census Bureau (part of the Commerce Department) is supposed to send the president the total populations of each state by Dec. 31. The president is then supposed to send that report to Congress by Jan. 10, 2021 a mere ten days before Trump leaves office. But based on what the acting solicitor general said in oral arguments, it is not clear that the Trump administration would be able to identify (and therefore exclude) enough unauthorized immigrants to change state congressional seats.

As a reminder, Trump’s goal is to reduce the power of states with large immigrant populations. The states that could lose a congressional seat under this plan are California, Florida, and Texas. Alabama, Minnesota and Ohio might keep seats they were likely about to lose.

To back up a bit, the census counts the number of people who live in our country once per decade. This count determines the level of federal funding, how many members of congress, and therefore how many electors to the Electoral College each state gets. The Constitution actually requires that Congress be in charge of counting how many people live in America. Congress outsources this responsibility to the Department of Commerce and the Census Bureau.

After the Department of Commerce counts how many people live in the country, it must provide the president with a report by Dec. 31, which is then sent to Congress by Jan. 10. Yes, this is all happening a mere 10 days before President-Elect Joe Biden’s inauguration.

Trump asked Ross to provide him with two sets of numbers: one that includes all people who live in this country and another that excludes unauthorized immigrants. (This second set of numbers would actually be based on data from agencies like Immigration and Customs Enforcement, not the census.) Trump wants that second set of numbers to determine congressional seats. Have we ever in the history of our country allocated congressional seats based only on citizens and legal immigrants? No, we have not. But Trump has never been one to allow norms, or even laws, to stand in the way of his political goals.

The big legal question here is whether the president has the discretion to order the secretary of commerce to provide two different counts in his report to Congress in order to allocate congressional districts based on numbers that exclude unauthorized immigrants. And the answer should be no. Under the Constitution, Congress must count all people who live in this country, regardless of legal status. The language of the Constitution provides that congressional seats should be apportioned based on the “whole number” of “persons in each state.”

As is so often the case, it appears that the procedural and timing questions will help the court avoid the big legal question, at least for now.

We know that the Founders knew how exclude people from official counts; They originally excluded two groups for this purpose — slaves and Native Americans. In addition, as Trump’s challengers point out, federal law requires that the secretary of commerce’s report to the president include “the tabulation of the total population by States.” It is hard to read the phrase “total population” as meaning everyone except unauthorized immigrants.

But as is so often the case, it appears that the procedural and timing questions will help the court avoid the big legal question, at least for now.

If the Census Bureau cannot provide Trump with this information, then the court may decide there is no dispute to resolve. The plaintiffs — local and state governments — have contended they have standing to sue (meaning they have suffered real harm that will be remedied if they win the case) because they will lose congressional seats if the July 2020 memorandum is put into effect.

If the Supreme Court chooses to wait, and Congress does not finalize the apportionment numbers before Biden is sworn in, the case could essentially become irrelevant. Biden’s administration is exceedingly unlikely to try to exclude unauthorized immigrants from the census. And there are still open questions about whether Congress would even use the numbers sent by the Trump administration.

At this point, it looks likely that this last tortured scheme by the Trump administration to take power away from diverse and urban areas will fail. The question is how and when the Supreme Court will tell us.

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