Three-Judge Panel Blocks Trump’s Census Memo as ‘Unlawful’

Amid concerns of the spread of COVID-19, census worker Jennifer Pope wears a mask and sits by ready to help at a U.S. Census walk-up counting site set up for Hunt County in Greenville, Texas, on July 31, 2020. (AP Photo/LM Otero)

MANHATTAN (CN) — The Trump administration’s latest effort to exclude the census count of undocumented immigrants in determining the political heft of U.S. states is unlawful, a panel of three federal judges ruled Thursday.

New York Attorney General Letitia James brought the challenge with 19 other states, 10 cities and five counties after President Donald Trump signed a memorandum that would exclude undocumented immigrants from the political apportionment base of decennial census count used to divvy seats in Congress.  

Ruling against Trump on Thursday afternoon at summary judgement, a Southern District of New York panel called that edict “an unlawful exercise of the authority granted to the president.” The 86-page opinion unanimously grants summary judgment and enjoins the Department of Commerce and the Bureau of the Census from reporting any information concerning the number of aliens in each state. 

“Directing the secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme,” the unsigned ruling states. 

“Second, the presidential memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons in’ a ‘state’ as Congress used those words,” the three-judge panel wrote. 

Blocking the memo on grounds that Trump exceeded the statutory authority granted to him by Congress, the panel found that it did not need to rule on the plaintiffs’ claims that the  decision to exclude illegal aliens from the apportionment base violates the Enumeration Clause and the Fourteenth Amendment of the Constitution. 

Dale Ho, director of the ACLU’s Voting Rights Project, argued the case and applauded Thursday’s ruling. “This is a huge victory for voting rights and for immigrants’ rights,” Ho said in a statement. “President Trump has tried and failed yet again to weaponize the census against immigrant communities. The law is clear — every person counts in the census,” Ho said Thursday evening.

Calling the ruling a major victory on Thursday New York’s Attorney General Tish James tweeted on Thursday: “No one ceases to be a person because they lack documentation, period.”

“President Trump’s repeated attempts to hinder, impair, and prejudice an accurate census and the subsequent apportionment have failed once again,” she remarked in a press release Thursday evening. “The courts have ruled in our favor on every census matter in the last two years and continually rejected President Trump’s unlawful efforts to manipulate the census for political purposes,” she added.

The Department of Justice declined on Thursday to comment on the outcome.

The panel was comprised of presiding U.S. District Judge Jesse Furman, along with Circuit Judges Richard Wesley and Peter Hall, who were appointed last month to hear the case pursuant to judicial procedure for cases that challenge the constitutionality of the apportionment of congressional districts. 

Federal law allows rulings by a three-judge panel in such a case to skip a review by a circuit court and instantly be appealed to the Supreme Court. 

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