A second panel of federal judges has ruled against the President Trump census policy that would seek to exclude undocumented immigrants from the count that determines congressional apportionment. The latest decision, handed down Thursday in a case brought in California, goes further than the previous ruling — which stemmed from a New York-based lawsuit — in that the new decision declares the policy both illegal and a violation of the Constitution.
The Supreme Court will have the final word on whether Trump can implement that policy, which was announced in July. The justices will hear arguments in the New York case in late November, which should allow for a decision by early January, before inauguration.
In the meantime, the court in the California case has also beefed up the order the administration is facing prohibiting it from taking certain steps to implement the policy.
The fight over whether Trump can exclude undocumented immigrants from the count used to determined how many House seats each state gets is just the latest example of how his efforts to hijack the decennial census have been slapped down by courts.
While this latest Trump gambit has always been considered a legal long shot, the implications are major. If he is allowed to implement the policy, three or more immigrant-rich states could lose House seats, while whiter, more Republican-friendly states would gain in congressional representation.
The court in the New York case, when striking down the policy in September, had already said that the policy violated various laws passed by Congress that dictate the protocols of the census and apportionment process. That court did not weigh in on the policy’s constitutionality.
This latest decision, however, said that the policy runs afoul of the Constitution’s Apportionment and Enumeration Clauses, and the Fourteenth Amendment. Together, those clauses say that the decennial enumeration of apportionment shall be based on a “whole number of persons in each state, excluding Indians not taxed.”
“When the Founders chose to exclude specific subsets of persons, such as Indians not taxed, they did so,” the court concluded.
“Aliens, documented or not, were not so excluded. Hence, the plain text of the Constitution includes undocumented immigrants,” the court in the California case said.
The court found violations of the Census Act and the Reapportionment Act as well.
Additionally, the court said that the policy was an unconstitutional violation of separations of power, because the Constitution gives Congress — not the Executive Branch — the power to enumerate the population and to use that enumeration for apportionment.
“All told, the Presidential Memorandum is incompatible with the statutes that govern the process of determining the population for the purpose of apportioning seats in the U.S. House of Representative among the states,” the opinion said. “It seeks to do what Congress has not authorized and what the President does not have the power to do.”
The latest decision expanded the order the panel in the New York case had handed down barring the Census Bureau and the Commerce Secretary from taking certain steps to implement the President’s apportionment policy. The September order said that the Census Bureau could continue to research how it would provide the data for the policy. (After the Supreme Court blocked Trump’s addition of a citizenship question to the census, the administration said that it would derive data on undocumented immigrants by looking at existing records instead.) But it barred the bureau or Secretary Ross from delivering to the President in its report of the census apportionment numbers data on undocumented immigrants in each state.
Since that September order, administration emails released in separate census litigation — in the case challenging the truncation of the count’s timeline — suggested that the Bureau was planning on delivering to the White House a set of numbers related to the undocumented immigrant policy in a report separate from the apportionment report that is due at the end of the year.
The latest order, in the California case, said that because of those emails, the court was expanding the order in the New York case so that it applied to “any reports otherwise provided by the Secretary as part of the decennial census. ”
Read the opinion below: