WASHINGTON — The US Supreme Court’s conservative justices ruled Friday that the Trump administration could go ahead for now with a plan to exclude undocumented immigrants from census data used to assign seats in Congress to states — but it didn’t decide if the plan was actually lawful and left the door open to future court fights.
President Donald Trump signed a memo in July that directed the Commerce Department to exclude undocumented immigrants from the 2020 census data used to decide how many seats in Congress each state receives. It was the latest push by the Trump administration to use the census to target immigrant communities; a previous push to add a citizenship question failed. A panel of federal judges blocked the latest plan in September, and the Justice Department petitioned the Supreme Court to step in.
A majority of the justices concluded in Friday’s order that the challenge brought by New York’s attorney general and the American Civil Liberties Union was “premature,” writing that it wasn’t clear yet how many people would actually be excluded from the census data at issue, and what populations of undocumented immigrants would be left out. The court’s three liberal-leaning justices dissented, writing that the case not only should be decided now, but also that they would conclude the plan was, in fact, unlawful.
The decision leaves a potential legal tangle for the incoming Biden administration to sort out. Commerce Secretary Wilbur Ross is due to send a report to Trump by Dec. 31 on the census counts to be used in congressional apportionment, but the Justice Department told the justices during arguments on Nov. 30 that the administration was “not on pace” to meet that deadline, according to coverage by Howe on the Court.
Whenever Ross sends the report to Trump, the ACLU has said they’re prepared to immediately challenge the policy again. They’d likely seek an emergency order blocking the administration from doing anything else with the data while the litigation starts over again in the district court.
“This Supreme Court decision is 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. 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,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement.
If renewed legal fights extend past Jan. 20, or if Ross fails to finalize the data and send it to Trump by the time President-elect Joe Biden is sworn in, the Biden administration will have to figure out how they can rescind the July memo and end whatever court cases are pending.
If Biden ultimately does rescind the July memo, that could also spur new legal challenges — Republican attorneys general who supported Trump’s plan could take the new administration to court, for instance.
The Supreme Court issued Friday’s decision “per curiam,” which means it represented the views of a majority of the justices but no one justice signed as the author of the opinion. The majority wrote that the case was “riddled with contingencies and speculation that impede judicial review.” Trump’s memo stated that the Commerce Department should collect data on the number of undocumented immigrants in the United States “to the extent practicable” and exclude them from the final apportionment data “to the extent feasible.”
Since it wasn’t clear yet if the Commerce Department could actually carry out the president’s directive — and if they could, how many people would be excluded from the data — the case wasn’t “ripe” yet and the challengers could show that they had standing to sue, the majority wrote.
Justice Stephen Breyer wrote a dissent and was joined by Justices Elena Kagan and Sonia Sotomayor. Breyer wrote that the administration hadn’t denied that states with larger populations of undocumented immigrants would be harmed by the policy — a smaller population count means fewer seats in Congress for that state — and that, on the merits, the policy should fall.
“The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Breyer wrote. “The Government’s effort to remove them from the apportionment base is unlawful, and I believe this Court should say so.”
Justice Department spokesperson Mollie Timmons said in a statement that they were "pleased that today’s ruling clears the way for the Commerce Department to continue its work on the census and send its full tabulation to the President."
A Commerce Department spokesperson did not immediately return a request for comment.
Updated with comment from a Justice Department spokesperson.