High Court Census Hearing Shows Barrett in Trump’s Corner

Census worker Jennifer Pope sits by ready to help at a walk-up counting site set up for Hunt County in Greenville, Texas, on July 31, 2020. (AP Photo/LM Otero)

WASHINGTON (CN) — The Supreme Court sketched uncertainty Monday for the Trump administration’s latest census ploy, with the government downplaying Democrats’ fears about lost seats in Congress.

President Donald Trump announced the new format in July, saying he would order the Commerce Department to exclude undocumented immigrants in the census reporting used to determine states’ seats in the House of Representatives.

Immigrants tend to live in cities, communities that tend to swing for Democrats in elections, so excluding them would ostensibly give Republicans an advantage. In the underlying lawsuit, New York Attorney General Letitia James is joined by 19 states, 10 cities and five counties in claiming that Trump’s plan harkens back to slavery-era rules from 150 years ago that limited which “persons” were counted for political purposes.

“And despite this lame-duck president’s repeated attempts to politicize the census and strip immigrant-rich states, like New York, of representation, the simple truth is that no one ceases to be a person because they lack documentation or ceases to live here because the president would prefer them to leave,” James said Monday afternoon after oral arguments.

Earlier this morning in court, Justice Samuel Alito questioned whether it was even feasible for the Census Bureau to categorize the roughly 10.5 million undocumented immigrants estimated in the country. With only 31 days left in the year, he said “it seems to me a monumental task.”

Acting U.S. Solicitor General Jeffrey Wall agreed but said this point favors the government because Trump’s change would be unlikely then to cause the widespread disruptions in Congress that some states are warning about.

“I think it is very unlikely that the bureau will be able to identify all or substantially all illegal aliens present in the country, so anything like the 10 or 11 or 12 million numbers that are flying around,” the acting U.S. solicitor general said. “They will be able to do ICE facilities, which as you say is some number in the tens of thousands.”

This argument appeared to mollify Justice Amy Coney Barrett, who spoke in favor of lifting the injunction on Trump’s order put in place by the Southern District of New York.

“If General Wall said the president and the secretary of commerce are only able to identify certain categories… doesn’t that cut in favor of waiting, that maybe there’s no injury here because we’re not really sure what the contours of the decision would be?” Barrett asked.

Challenging that idea, however, ACLU attorney Dale Ho said this is a matter that should be addressed today, “rather than in six months during the redistricting process, which could be disruptive.”

Speaking on behalf of the New York Immigration Commission and other private groups challenging Trump’s order, Ho reminded the court that the tradition of counting persons in each state, “without regard to immigration status,” dates back to the country’s first census in 1790.

Auspiciously for the challengers, this point seemed to register with Barrett.

“A lot of the historical evidence and a longstanding practice really cuts against your position,” the court’s newest member said to Wall.

Barrett asked Wall to explain why, if an undocumented person has been in the country for decades, that person would not be considered to have a settled residence in the country.

Wall compared such residency to that of long-term embassy personnel, who have ties to the community but are nevertheless excluded from apportionment.

Though he did not expect Trump’s plan to significantly alter the number of seats states are allotted in the House of Representatives, Wall also did not offer any estimate of what number could be excluded.

“As of this very morning, career experts at the Census Bureau confirmed with me that they still don’t know even roughly how many illegal aliens they’ll be able to identify, let alone how their number and geographic concentration might affect apportionment,” he said. “And if they don’t know, certainly the other parties to this case do not.” 

Justice Elena Kagan said it sounded like this policy shift could “very easily” exclude 4 million or 5 million people. She asked why the government can’t resubmit the issue to the court when there is a better idea of how many people Trump’s memorandum could exclude.

Ho, who is head of the ACLU’s Voting Rights Project, said the government would be able to exclude enough undocumented immigrants to significantly affect representation.

“The government has information on millions of undocumented immigrants, and one and a half years ago, when the president issued an executive order in July of 2019, he stated that the government could already match citizenship records for 90% of the population,” the lawyer argued.

For Wall, however, Trump’s authority favors a reversal.

“The president has at least some discretion to determine that at least some illegal aliens lack enduring ties to the states,” the solicitor general said.

Wall also noted that the Census Bureau is not currently “on pace” to send a report to the president by the Dec. 31 deadline.

New York’s Underwood meanwhile pushed the high court to affirm, emphasizing that the apportionment clause of the U.S. Constitution states that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.”

“The president’s new policy of refusing to count people who are not of the lawful immigration status is flatly inconsistent with that command,” Underwood told the court Monday. “Our laws reflect the deliberate choice not to base apportionment on citizenship voter eligibility or any other legal status, but instead to count the number of people living in a state that is always included people who are eligible to vote, including noncitizens, and it is also included people who were present in violation of law.”

Wall said it would be impossible to account for all undocumented immigrants but that the government could identify and exclude subsets of this by sorting illegal immigrants into categories, such as the roughly 600,000 currently detained by Immigrations and Customs Enforcement; the roughly 700,000 people enrolled in Deferred Action for Childhood Arrivals; and the roughly 3.2 million individuals members of the public who face removal proceedings.

Though Wall said none of these populations would satisfy the test for inhabitancy as outlined in Trump’s order, Justice Sonia Sotomayor Monday appeared skeptical.

“I’m not sure how you can identify any class of immigrants that isn’t living here in its traditional sense, that this is where they are, this is where they were on April 1, and where they intend to stay if they can find any way to do it,” Sotomayor said.

On this point, Barrett again appeared to side with the government.

“I have reasons for thinking each of these don’t satisfy the inhabitancy requirement,” Barrett said, referring to those people who are in ICE detention facilities, those in removal proceedings; and DACA recipients.

During her time, Underwood portrayed Trump’s plan as one untethered to reality. “The memorandum pretends that if under the law, a person should not be here, then the person is not here,” she said.

“This policy ignores the undisputed facts that millions of undocumented immigrants have lived here for decades and have substantial community ties,” Underwood added. “Their undocumented status doesn’t erase their presence.”

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