The Supreme Court on Friday declined to weigh the Trump administration’s effort to exclude illegal immigrants from the census count.
In a 6-3 decision, the court ruled that since the challenge to President Trump lacked the standing to order that illegal immigrants not be counted, the court could not weigh in on the issue in any substantive way. It was required to show that “an actual controversy must exist not only at the time the complaint is filed but through all stages of the litigation.”
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the court wrote in an unsigned majority opinion, adding that the challenge is “conjectural or hypothetical” and has not demonstrated that the case is “ripe,” meaning that its urgency is not dependent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.”
“Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented,” the court wrote. “We hold only that they are not suitable for adjudication at this time.”
Trump in June issued an order in which he requested that the census exclude “from the apportionment base aliens who are not in a lawful immigration status,” adding that this method should be carried out “to the maximum extent feasible.”
Trump’s proposal, which would lead to excluding more than 10 million people from apportionment, prompted the court to observe in its majority opinion that “the policy may not prove feasible to implement in any manner whatsoever” and that “everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status.”
Furthermore, the court added, since apportionment, the process by which congressional redistricting will be determined, has not yet begun, the court stressed that weighing in at this point would not be wise.
“The count here is complete; the present dispute involves the apportionment process, which remains at a preliminary stage,” the court wrote. “The Government’s eventual action will reflect both legal and practical constraints, making any prediction about future injury just that — a prediction.”
Justice Stephen Breyer, in a dissent joined by Justices Elena Kagan and Sonia Sotomayor, wrote that “the uncertainty” about the timing of the case “does not warrant our waiting to decide the merits of the plaintiffs’ claim.”
Breyer added that, in his view, excluding anyone from the census is unlawful and that the court should speak out on that fact.
The three liberal justices dissented, saying the effort to exclude people in the country from the population for divvying up House seats is unlawful.
“I believe this Court should say so,” Breyer wrote.
The court heard the case in late November. Several conservative justices at the time expressed hesitancy in ruling on the merits of the case, with Justice Samuel Alito pointing out that running a count excluding people who reside in the United States illegally would be a “monumental task” to tackle by the end of the year.
This decision is the second time this year that the court has ruled on a census issue. In the first case, decided this summer, Chief Justice John Roberts was the swing vote in deciding to keep a citizenship question off the census.
Dale Ho, the director of the American Civil Liberties Union’s Voting Rights Project, which opposed the administration in the dispute, responded to the decision, saying that “if the administration actually tries to implement this policy, we’ll sue. Again. And we’ll win.”
