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.