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The US Supreme Court has appeared skeptical of Donald Trump’s efforts to exclude undocumented immigrants from critical census data, but it also appeared reluctant to end the policy immediately.
The court on Monday considered a high-stakes dispute focused on a July memo in which Trump ordered the Commerce Department to exclude undocumented migrants from the census tally used to determine how many seats each state gets in Congress. The decennial census, conducted since the founding of America, has long used the total population as the basis for the allocation of seats.
The Trump administration’s policies would probably do the most harm to immigrant-rich countries such as California and Texas, while benefiting whiter, more conservative areas for the next decade. Several states, led by New York, as well as a coalition of immigrant advocacy groups, have challenged the policy in courts across the country. Lower courts in several of the cases blocked the policy as illegal.
On Monday, even two of the court’s most conservative justices, Brett Kavanaugh and Amy Coney Barrett, seemed somewhat wary of the constitution allowing the president to categorically exclude undocumented immigrants from the pay-as-you-go accounts. The constitution states that seats in Congress are to be distributed on the basis of “total number of people”.
“A lot of historical evidence and long-standing practice really goes against your position,” Barrett told Jeffrey Wall, the government’s senior lawyer, who has argued on behalf of the Trump administration.
Attempts to exclude non-citizens have been at the heart of the Trump administration’s census strategy. Last year, the Supreme Court barred the Trump administration from adding a citizenship question to the census itself. This year, the administration rushed to complete the count even as experts warned it needed more time to produce reliable data, in what was likely an effort to give Trump a say on the final figures before leaving office. If the possibility remains open, President-elect Joe Biden would likely reverse the order to exclude undocumented immigrants from the distribution once he takes office.
Much of Monday’s argument was not about the merits of the president’s actions but about the timing of the case. Wall told judges Monday that the Commerce Department was behind schedule – it faces a Dec.31 deadline – in preparing data for the president, and it was still not clear how many undocumented people the government would be able to exclude. The court would have to wait until this uncertainty is resolved to see how many people could be affected before making a decision, he said.
Many justices wondered aloud if it was just too early for the United States Supreme Court to step in and prevent Commerce Secretary Wilbur Ross, who oversees the census, from sending Trump a set of data with a count of undocumented immigrants.
“I find the posture of this case quite frustrating. We may be dealing with a fairly significant possibility. It may be a lot of ado for very little. It depends on what the Census Bureau and the Commerce Department are able to do, ”said Samuel Alito, another conservative court judge.
Judge Neil Gorsuch, a conservative, suggested that the number of undocumented people could be so small that it wouldn’t affect the distribution. But Elena Kagan and Sonia Sotomayor, two of the more liberal members of the court, strongly rejected the idea. Kagan noted that the government already had records of millions of undocumented migrants.
Sotomayor said that regardless of what the Census Bureau ultimately calculated, the Trump administration chose to exclude all undocumented immigrants, a choice that indicated he wanted to have as big an effect as possible. “The expected number is substantially high,” she said.
Wall suggested that the challengers take action next year, after the seats are distributed, but Chief Justice John Roberts seemed suspicious. He noted that asking the court to intervene after the allocation would be like trying to “decipher the eggs” because any change in the seats of a single state has “ripple effects.”
Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union, noted in court that waiting too long would disrupt the redistribution process that states are expected to begin next year.
But stepping away from the process of the case, Ho said the census had always assessed whether or not to count people based on residence and not immigration status. Noting that undocumented people contribute to the US economy, serve as essential workers, and pay millions in taxes, he ended his argument by pointing out the absurdity of excluding them from the count.
“While the president may have some discretion in borderline cases, he does not have the discretion to wipe millions of state residents from the distribution based solely on legal immigration status,” he said. -he declares. “They are our neighbors, our colleagues and our family members. They are usual residents according to plausible definitions of that term. “
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