The Supreme Court’s conservative majority said Friday the question of whether President Trump’s anti-immigrant apportionment policy is legal was not yet ready for its review.
In an unsigned opinion, the court said it was taking no view of the merits of the case challenging the census policy, which seeks to exclude from the count used for apportionment undocumented immigrants. The court, however, reversed a lower court’s decision blocking the Commerce Department, which oversees the census, from taking certain steps to implement the policy.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the Supreme Court said.
The court’s three Democratic-appointed justices dissented from the decision and would have let lower court ruling stand.
The Supreme Court majority’s dodge in the case keeps alive a far-right passion project to fundamentally change who gets representation in the United States. Even if Trump does not succeed in implementing the policy due to logistical issues that have arisen, Friday’s decision sets the table for a future administration to try again during the next census.
Excluding undocumented immigrants from the apportionment count would reduce the number of House seats that immigrant-rich states, like California, are given in the next round of apportionment, while increasing the number of House seats for whiter, more reliably Republican states. The apportionment count also provides the basis for the Electoral College. The Constitution mandates that this count be based on a census of a “whole number of persons’ in each state.
The Supreme Court said Friday that nonetheless, “any prediction how the Executive Branch might eventually implement this general statement of policy is ‘no more than conjecture’ at this time.”
It cited specifically the lack of clarity around just how many undocumented immigrants Trump would ultimately be able to subtract from the apportionment count, as well as whether that subtraction would impact the number of House seats states would get or the funding that they receive. (Several government funding programs are based on census data).
“We simply do not know whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment,” the court said.
The liberals’ dissent, which was penned by Justice Stephen Breyer, said that putting off the decision would bring about severe costs, as another round of litigation would delay states’ redistricting processes, and on the merits, the question of the policy’s legality was not “not difficult.” Breyer said that the text of the relevant law, its history and the legislative record behind it support the conclusion that the Trump policy violates statutes passed by Congress concerning the census and apportionment. He stopped short of weighing in on whether it was unconstitutional.
“Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed,” Breyer wrote.
The policy was announced in July and the administration has worked aggressively to implement it. Days after it was unveiled, the administration reversed on pandemic-related plans to give the Census Bureau four extra months to finish the count; that extension would have given the bureau until late March to release the apportionment data, meaning that the policy would have likely been killed if Trump lost re-election.
Despite the administration’s pressure on the bureau to expedite the count so that the apportionment numbers could be released before Joe Biden’s inauguration, some late-stage delays in data processing are threatening the bureau’s ability to do so.
There are also questions about how feasible the policy is from the perspective of the bureau’s ability to gather records on undocumented immigrants to enumerate how many should be exluded from each states. The Supreme Court previously blocked the Trump administration from adding a citizenship question to the survey. At the time the administration claimed the question would help Voting Rights Act enforcement but it is now clear that the hope was it would produce data that could be used to exclude certain immigrants from the counts that determine how political power is doled out across the country.
The Trump apportionment policy was challenged in court quickly after it was unveiled. Prior to the Supreme Court’s decision, three courts had ruled it was illegal, with one of them also concluding it was unconstitutional. A fourth lower court had said it was too soon to resolve the dispute.
The ACLU, which led one of the lawsuits that was before the Supreme Court, emphasized in a statement that Friday’s decision was “only about timing, not the merits.”
“This ruling does not authorize President Trump’s goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives,” ACLU’s Voting Rights Project Director Dale Ho said in the statement. “The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress. If this policy is ever actually implemented, we’ll be right back in court challenging it.”