(CN) — Attorneys for the city of San Jose, California argued during a remote hearing Thursday that the Trump administration should not be able to exclude undocumented individuals from the 2020 Census process, in a case that figures to go all the way to the U.S. Supreme Court.
“There is not a single instance of the framers or anyone since referring to inhabitants as only citizens of the state,” said Attorney Richard Bress, arguing on behalf of the plaintiffs.
Bress said that because the laws regarding the Congressionally-mandated decadal census refer to inhabitants and not citizens, then it is crucial that undocumented persons in the United States are included in the count.
The stakes are high as the census not only reveals population levels and demographic information but also influences federal spending allocation and the distribution of federal grants to states.
More important still, it guides the apportionment process or the process by which congressional seats are divided among the state, which in turn affects the fundamental balance of power in the House of Representatives.
Because the case directly deals with apportionment, U.S. District Judges Lucy Koh and Edward Chen and Senior U.S. Circuit Judge Richard Clifton presided over the remote hearing.
The judges’ questions mostly centered on the question of timing, whether they should rule now or wait until after the apportionment process is complete before deciding whether to include the undocumented.
“The course the Supreme Court has charted indicates we should wait until after the apportionment process is complete,” said Sopan Joshi, arguing on behalf of the Trump administration.
The Trump administration isn’t sure which categories of undocumented it will seek to include or discount, as Joshi argued the statute gives U.S. Secretary of Commerce Wilbur Ross considerable latitude to decide.
For instance, the administration may seek only to exclude individuals who have received their final deportation papers with an exhausted appeals process. Another possibility, Joshi said, was that the administration may only seek to exclude those currently in ICE detention facilities.
Matthew Wise, arguing on behalf of plaintiffs, said there is “no ambiguity” as it relates to the Trump administration’s efforts to exclude as many undocumented people as possible.
“This is not an administration that is in the process of pondering what is feasible in the presidential memo,” Wise said.
The memo refers to an order given by President Donald Trump instructing the Commerce Department to make every effort to exclusively count those with current citizenship status.
While Joshi made it appear as though the administration was in the process of carefully weighing different factors when trying to decide who and who not to count, Wise said that was only a posture made for the purposes of the hearing.
“The administration, whether it is in press briefings or court filings, has repeatedly doubled down on their intention to implement this memo,” Wise said.
The plaintiffs include the state of California, which has a material interest in the outcome of the case as a Trump administration victory would almost ensure it would lose one seat in the House of Representatives, potentially eroding the power of the California delegation.
California Attorney General Xavier Beccera, who filed the lawsuit in July said Trump’s action would strip California cities and counties of critical funding for schools, transportation infrastructure, public parks and more.
“It would deny California what it has a right to and what it has earned,” Becerra said in July.
On Thursday, Bress pressed the judges to decide before the apportionment process was complete.
“If we postpone this review, we risk a constitutional crisis,” he said.
Wise argued that state redistricting and other important actions predicated on an accurate census count will be unnecessarily delayed by waiting until after apportionment is complete.
Joshi said states will likely have to wait either way, as challenges are likely to come from both sides and the Supreme Court may be the ultimate arbiter.
It has already taken up another census-related case in federal court in California. The other case presided over by Koh, has to do with the census timeline. The Commerce Department attempted to compress the window in which enumerators collect census data, trying to end that period on Sept. 30. Koh enjoined the department from doing so and made the new deadline Oct. 31.
The Trump administration has appealed the decision to the Supreme Court.
The state of California is not the only jurisdiction to try and thwart Trump’s census plans as it relates to counting illegal immigrants.
A coalition of nearly 30 states and local governments including New York, Colorado, Chicago and Phoenix filed a similar legal challenge last week to the Trump administration’s move. The coalition wants a federal judge to block the change because it violates the Constitution’s enumeration clause, the Fifth Amendment’s due process clause, the 10th Amendment’s protections of states’ rights, the 14th Amendment and the Administrative Procedure Act.
The city of Atlanta filed its own legal challenge of the memorandum shortly after Trump announced it. San Jose, California, King County, Washington state and Arlington County, Virginia, have also piled on.