Crime & Justice

Supreme Court Punts Census Case, Giving Trump An Iffy Chance To Alter Numbers


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The U.S. Supreme Court dodged a ruling on Friday on whether President Trump can exclude undocumented immigrants from a key census count.

In the unsigned opinion, the court said it would be premature to rule on the case right now because it is "riddled with contingencies and speculation" and even the Trump administration doesn't know how many undocumented immigrants there are or where they live.

"At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this" case is "premature," the justices wrote.

In their dissent, the three liberal justices said that there is enough of a record in this case to say that the administration's plan is clearly illegal under federal law. That's because 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 decision leaves open the possibility for Trump to try to remove some undocumented immigrants from a key census count, but immigrant rights advocates warned Friday that they would sue.

"If the Administration actually tries to implement this policy, we'll sue. Again. And we'll win," Dale Ho, director of the American Civil Liberties Union's voting rights project, said on Twitter.

The Constitution requires that there be a count of the "whole number of persons" in the country every 10 years and that congressional seats be allocated based on that population count in each state. The Electoral College votes are identically apportioned.

In July, Trump issued a memorandum ordering the Census Bureau to send him two sets of numbers. One set was to be the whole number of persons in each state. The second set would allow the number of undocumented immigrants in each state to be subtracted from those numbers for purposes for determining how many seats each state gets in the House of Representatives.

Twenty-three states challenged Trump's directive in court, along with immigrant rights advocates and other groups. Lower courts blocked Trump's plan from going into effect, saying it violated the constitution, federal census statutes or both.

The Trump administration appealed to the Supreme Court, arguing that the president has "virtually unfettered discretion" as to what data is used in the decennial census. But the lower courts rejected that claim, with both Republican- and Democratic-appointed judges ruling against him.

Among the arguments made by the administration was the assertion that undocumented immigrants are not inhabitants as the Framers would have understood the term when writing the Constitution and deciding how to divide up federal power among the states.

Countering that argument, states and immigrant groups noted that about two-thirds of unauthorized immigrants have lived in this country for at least 10 years, with the median being 15 years.

The litigation added difficulty for an already-burdened Census Bureau, which geared up for the nationwide rollout of the census count just as the COVID-19 pandemic began hitting with full force in April. And the Census Bureau indicated this fall that it might not be able to meet the Dec. 31 deadline for reporting its figures.

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