WASHINGTON (CN) — Throwing out a challenge from New York state, the Supreme Court called it premature Friday to rule on an executive order that directs census officials to exclude undocumented immigrants as part of the count to apportion seats in Congress.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the unsigned 7-page opinion states. “The president, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the president qualified his directive by providing that the secretary should gather information ‘to the extent practicable’ and that aliens should be excluded ‘to the extent feasible.’ Any prediction how the Executive Branch might eventually implement this general statement of policy is ‘no more than conjecture’ at this time.’
The three Democratic judges on the court dissented, saying there is enough risk of injury to rule on the order from President Donald Trump that, to their mind, is clearly illegal.
“The government has announced a policy to exclude aliens without lawful status from the apportionment base for the decennial census,” wrote Justice Stephen Breyer. “The government does not deny that, if carried out, the policy will harm the plaintiffs. Nor does it deny that it will implement that policy imminently (to the extent it is able to do so). Under a straightforward application of our precedents, the plaintiffs have standing to sue. The question is ripe for resolution. And, in my view, the plaintiffs should also prevail on the merits.”
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 usually swing for Democrats in elections, so excluding them would ostensibly give Republicans an advantage. In the underlying lawsuit, New York Attorney General Letitia James was 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.
Trump appealed to the Supreme Court after a three-judge panel in New York enjoined his census order. The high court vacated that injunction Friday, with instructions that the three-judge panel dismiss the case for lack of jurisdiction.
In doing so, however, the justices emphasized that they were not addressing the constitutional merits of the case. “We hold only that they are not suitable for adjudication at this time,” the majority wrote.
Their opinion acknowledges statements by acting U.S. Solicitor General Jeffrey Wall at the remotely held November hearing regarding the unknowns about how many immigrants Trump’s order will affect.
While the states say Trump’s change would cause widespread disruptions in Congress, Wall called this is unlikely as the government will be able to identify only a fraction of all immigrants who are in the country illegally before the Dec. 31 deadline.
The majority concluded that the states rely on “a significant degree of guesswork” in asserting what they call a “substantial risk” of reduced representation and federal resources.
“Everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status,” the majority wrote. “Yet the only evidence speaking to the predicted change in apportionment unrealistically assumes that the president will exclude the entire undocumented population. Nothing in the record addresses the consequences of a partial implementation of the memorandum, much less supports the dissent’s speculation that excluding aliens in ICE detention will impact interstate apportionment.
“The impact on funding is no more certain. According to the government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum.”
Documents leaked to the House committee overseeing the census have since indicated the apportionment numbers may not be ready until after President-elect Joe Biden is sworn in on January 20 — which could moot the entire controversy.
ACLU attorney Dale Ho, who spoke on behalf of the New York Immigration Commission and other private groups challenging Trump’s order in November, shared Friday that regardless of this ruling, his group is not afraid to challenge Trump on the move in the future.
“If the administration actually tries to implement this policy, we’ll sue. Again,” Ho tweeted. “And we’ll win.”
In a 21-page dissent triple the length of the lead opinion, the trio of Democratic justices said they would have affirmed.
“The touchstone for counting persons in the decennial census is their usual residence, not their immigration status,” Breyer wrote, joined by Justices Sonia Sotomayor and Elena Kagan. “That alone is enough to resolve this case, because the memorandum seeks to exclude anywhere between tens of thousands and millions of persons from the census count based solely on their immigration status, and it does so for the stated goal of changing the apportionment total at the expense of the plaintiffs. … It is our task to review the policy as promulgated, and that policy draws a distinction that the statute does not allow.”
They said the plaintiffs have standing to sue, and that the uncertainty cloaking the matter “does not warrant our waiting to decide the merits of the plaintiffs’ claim.”
Breyer noted that it would not be the first time that the court has resolved census controversies where there is a substantial risk of an apportionment harm.
“Waiting to adjudicate plaintiffs’ claims until after the president submits his tabulation to Congress, as the court seems to prefer, risks needless and costly delays in apportionment,” he said.
Representatives for the Department of Justice did not respond to a request for comment.
This story is developing…