SCOTUS Dodges Issue of Removing Undocumented Immigrants from Census

The Supreme Court has dismissed as premature a challenge to President Trump’s plan to exclude people living in the country without legal documents from the Census’ population count, used to allot states seats in the House of Representatives. The six conservative judges on the Court said that until action is actually taken and people are excluded, there is no way of knowing the impact on the House count and whether any person or State would therefore have standing to bring the issue. “At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution . . . premature,” the justices wrote in an unsigned opinion. The three liberal justices dissented, saying the effort to exclude any classification of people in the country from the counted population for divvying up House seats is unlawful. “I believe this Court should say so,” Justice Stephen Breyer wrote, joined by Justices Sonia Sotomayor and Elena Kagan.

The Constitution requires that there be a count of the “whole number of persons” in the country every ten years, and that congressional seats be allocated based on that population count from each state. The Electoral College votes are then identically apportioned. Census numbers used to determine each state’s share of seats in the House of Representatives and votes in the Electoral College have always included both citizens and noncitizens, regardless of their immigration status. The Fourteenth Amendment clearly states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” The framers of the Fourteenth Amendment deliberately chose the phrase “whole number of persons” to refer to all persons living in each state — including the entire immigrant population. More than 150 years of history, practice, and judicial and administrative precedents have since established that the apportionment of House representatives must be based on all persons living in each state, regardless of their citizenship or immigration status. But then . . . Trump.

Trump had asked the Census to send him two sets of numbers: one with every person counted and the other with undocumented persons listed separately. The second set would allow the number of undocumented immigrants in each state to be subtracted from the whole numbers for purposes for determining how many seats each state gets in the House of Representatives. His administration has defended his authority to exclude at least some people living in the country illegally, including people who are in immigration detention or those who have been ordered to leave the country. During oral argument on the case in November, however, Acting Solicitor General Jeffrey Wall, said the administration would not rule out larger categories of immigrants, including those who have protection from deportation under the DACA program.

Once the Executive Order asking for the two sets of numbers was issued, lawsuits were filed. Mostly Blue States joined in the litigation even though Red States like Arizona, Florida and Texas would suffer loss of House seats if the action went forward. States joining the lawsuit were:  Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. 

The Trump administration argued that under federal law, the President has “virtually unfettered discretion” as to what data is used in the Census. But all the lower courts rejected that claim, with both Republican- and Democratic-appointed judges ruling against him. It then went up to SCOTUS.

It seems that this issue will be moot since the actual numbers from the count will not be ready by January 20, 2021, and President-elect Joe Biden will not eliminate this group from the census count. While the Court’s opinion did not reference this fact, it is likely that they knew that this will become a dead issue on January 21 when Biden and Kamala Harris take office, so why deal with this now. As much as I wanted to see the Court rule that this order is illegal (as that would be the only possible result absent a sea change of centuries of practice and decision), I am not surprised SCOTUS punted on it. In reality, it kills the issue and amounts to a win for undocumented persons living in this country and for the States where they reside. To quote the legal scholar Neil Peart from Rush, “If you choose not to decide you still have made a choice.”

Follow me on Twitter @oscarmichelen

Email me at omichelen@cuomollc.com

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