The Supreme Court will hear arguments on Monday regarding whether the Trump administration can exclude undocumented immigrants in the population counts used to apportion seats in the House of Representatives and allocate federal funding to states.
The court will hear 80-minute oral arguments by teleconference, according to Reuters, and will expedite the case so a decision will be made by the end of the year.
President Trump’s directive is being challenged by a coalition of states and immigrant rights groups led by New York. They argue that the decision would undercount several million people living in the United States and would cause states like California, Texas, and New Jersey to lose seats in the House.
A three-judge panel in New York already ruled against the administration, and courts in California and Maryland have made similar rulings. One court in Washington ruled in favor of Trump in a similar case.
Last year, the Supreme Court ruled 5-4 against the president’s move to add a citizenship question to the census, with Chief Justice John Roberts joining the court’s four liberal justices. A new court will hear Monday’s case, with a 6-3 conservative majority following the death of Justice Ruth Bader Ginsberg and the confirmation of Justice Amy Coney Barrett.
Article 1, Section 2 of the Constitution does not specify whether House apportionment should be based strictly on the number of citizens in each state, and the 14th Amendment states, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” Generally, that has been understood to include anyone who lives in a state regardless of legal status.
Context for following #SCOTUS today: the 230-year history of who is counted in the U.S. census is complicated (see 3/5ths Compromise & “Indians not taxed”), but the federal government has never excluded people living in the states because of their immigration status.
— Hansi Lo Wang (@hansilowang) November 30, 2020
The legal battle comes as the Census Bureau struggles to finalize census data and submit it to the president by the December deadline.
In October, the Supreme Court ruled that Commerce Secretary Wilbur Ross could end data collection ahead of the Oct. 31 deadline so the bureau could attempt to meet the Dec. 31 deadline. Following the ruling, collection efforts were instructed to halt roughly two weeks ahead of schedule, forcing field reporters to condense the two remaining weeks of work into the two days after the Supreme Court’s Oct. 13 ruling.
Earlier this month, the Census Bureau said it found “certain processing anomalies” during its analysis of data collected from the 2020 census, casting doubt on whether the bureau will meet its December deadline to submit the results to the president.
If the data is sent to Trump by the Dec. 31 deadline and the Supreme Court upholds his directive, there would be little left to stop him from altering how immigrants who live in the country illegally are taken into consideration when apportioning House seats. The president is required by statute to send Congress a report in early January with the population of each state and their House apportionments.
The clerk of the House of Representatives could refuse to certify House apportionments based on data that has been altered by the outgoing administration. The U.S. Code regarding census data and House apportionment states it is the responsibility of the clerk of the House of Representatives “to send to the executives of each State a certificate of the number of Representatives to which such State is entitled,” not the president.
