Supreme Court says challenge to Trump’s plan to not count undocumented in reapportionment must wait

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WASHINGTON – The Supreme Court on Friday dismissed a challenge to President Donald Trump’s authority to exclude undocumented immigrants when deciding the size of each state’s congressional delegation, saying it was premature to decide the question at this point.

The court’s unsigned opinion said the constitutional and legal questions surrounding such action should wait until it is clear whether Trump would be able to make good on his plan. It is unclear whether the Census Bureau can come up with the population figures Trump seeks before he leaves office.

“We express no view on the merits of the constitutional and related statutory claims presented,” the opinion said. “We hold only that they are not suitable for adjudication at this time.”

The three liberal justices disagreed and said the court should say now that Trump lacks authority.

“The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Justice Stephen G. Breyer wrote, joined by Justices Sonia Sotomayor and Elena Kagan.

“The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so.”

The decision means Trump could at least try to subtract the undocumented from the numbers used for reapportionment, and that legal challenges would have to come later if he succeeds.

At oral argument, the government’s lawyer said it was unknown whether census officials could present firm statistics on the nation’s undocumented population and where those people live.

The opinion said that counseled a wait-and-see approach. “At present, this case is riddled with contingencies and speculation that impede judicial review,” the opinion said.

Trump for the first time in the nation’s history claimed the authority to exclude undocumented residents when reapportioning Congress.

In a July memorandum, Trump indicated he believed that some states would be getting greater representation than deserved – California was implied but not named – because of their numbers of undocumented residents.

He directed Commerce Secretary Wilbur Ross to provide him with two sets of numbers, one that includes unauthorized immigrants and one that does not, “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

Opponents of his plan said it is foreclosed by more than 200 years of practice, the text of the Constitution and the authority granted the president by Congress. Three lower courts have ruled against Trump, and a fourth said the time was not ripe for a decision on the question’s merits.

Legally, the challengers said, Trump’s intentions are directly contradicted by the Constitution’s requirement to base apportionment of the House of Representatives on “the whole number of persons in each state” as determined by the once-a-decade census.

But the president’s lawyers told the Supreme Court when the case was argued last month that it is up to the president to decide whether undocumented immigrants should be counted, a decision that could have far-reaching implications for a state’s representation in Congress and power in the electoral college, and for billions of dollars in federal funds.

At the same time, acting solicitor general Jeffrey B. Wall told the court that it was unclear whether the Census Bureau could produce reliable numbers before the end of the year, when the report is due.

The Supreme Court last year said the administration could not ask a citizenship question on the census form because it had not done the necessary work to show it would not harm the count’s accuracy.

The Census Bureau did not respond to questions from The Washington Post last week about when it expects to produce state population totals and tallies of undocumented immigrants by state.

In a recent report, the Government Accountability Office said the bureau had not provided information it had requested about changed time frames for response processing and its plans for ensuring accuracy in the data it delivers.

The report said that because the bureau compressed its response processing time from 153 days to 77, it “faces increased risk that system defects or other information technology issues may go undetected, affecting the quality and accuracy of the count. Additionally, the Bureau will have less time to address issues that arise.”

No one disputes that eliminating the undocumented would shift representation from some more diverse states with large immigrant populations to states where the population is more White.

A Pew Research Center study this summer found that if the country’s undocumented immigrants were excluded from apportionment, California, Texas and Florida would end up with one less seat, while Minnesota, Ohio and Alabama would end up with one more, compared with what they would have gotten with no adjustments.

The census report is supposed to be submitted to the president by the end of the year. It is up to the president then to inform Congress within one week of the opening of its next session how its 435 seats are to be allocated. The House clerk then has 15 days to inform the states of the number of representatives to which each is entitled.

If the bureau cannot present accurate numbers to Trump, the reapportionment task would fall to Joe Biden after he takes office as president.

The case is Trump v. New York.