On Monday, the Supreme Court heard arguments about whether the president has the ability to decide that undocumented immigrants should be excluded from census counts, which are used to decide the number of congressional representatives allotted to each state.
The case, Trump v. New York, centers on a memo issued by President Trump in July, which spelled out a policy to exclude undocumented immigrants and said that giving “congressional representation” to states with those immigrants “undermines” democratic principles.
The U.S. Census Bureau has always counted both citizens and noncitizens in its count of the “total resident population,” which is used for congressional apportionment.
On Monday, the court’s justices took significant time to question whether it would even be possible for the U.S. government to identify all undocumented immigrants in order to exclude them from the count.
The number of noncitizens has been estimated to be as many as 10.5 million, according to numbers quoted when the case was heard in a lower court. On Monday, Justice Samuel Alito called excluding that number of people this late in the year a “monumental task.”
The attorney representing the administration said, indeed, the census will likely not be able “match” the millions of undocumented immigrants to the appropriate states over the next few weeks.
“I think it is very unlikely the bureau will be able to identify all or substantially all illegal aliens present in the country. So anything like the 10 or 12 million numbers that are flying around,” Jeffrey Wall, the acting U.S. Solicitor General, explained. “So there is substantial uncertainty.”
Wall argued the administration may exclude certain subsets of noncitizens in the meantime, such as those in ICE detention, people who are set to be deported and people who have overstayed their visas. But the total number of undocumented immigrants in those groups is unlikely to substantially sway congressional apportionment either way.
Census officials have already said they cannot provide their final population count until at least January 26 or as late as mid-February, which is after President Trump leaves office. That could leave room for Joe Biden to reverse the policy.
On the plaintiffs’ side, which is made up of a group of state and local governments as well as a separate group of advocacy organizations, attorneys argued the intention to exclude undocumented immigrants is unconstitutional.
The constitution states that “representatives shall be apportioned” by “counting the whole number of persons in each State.” The plaintiffs argued that noncitizens are still residents of their state and therefore should be counted as part of the “whole number.”
“This policy ignores the undisupted fact that millions of undocumented imigrants have lived here for decades and have substantial community ties,” said New York Solicitor General Barbara Underwood. “Their undocumented status does not erase their presence.”
On the other side, the Trump administration argued that undocumented immigrants should not count because they do not necessarily have an “allegiance or enduring tie” to the community. But Dale Ho, who represents the American Civil Liberties Union, highlighted the fact that the inclusion of noncitizens has never been questioned before.
“Congress mandated apportionment on ‘total population,’ the plain meaning of which does not permit exclusions for immigration status,” Ho said.
The implications of the case could be significant in states with large undocumented populations, such as California, which is home to at least 2 million undocumented immigrants, or about 5% of its population.
Two lower courts have ruled that the plan to exclude noncitizens is unconstitutional. A panel of federal judges in D.C. said the case cannot be considered at this time, when the census count is still in flux.
A decision from the court is expected by the end of the year or in early January, prior to the President’s deadline for sending the final count to Congress.