Supreme Court tees up census case over whether Trump can exclude undocumented immigrants

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The Supreme Court will hear arguments next month over whether President Donald Trump can exclude undocumented immigrants from the census count used to apportion congressional districts to the 50 states, it said Friday.

The court’s announcement teed up oral arguments in the case for Nov. 30, an accelerated timeline that paves the way for a potential decision before the Census Bureau is set to deliver the population counts to Trump’s desk at the end of the year.

In July, Trump issued a memorandum asking the Census Bureau to subtract undocumented immigrants from the count for the purposes of congressional apportionment — the reallocation of the nation’s 435 House districts every 10 years.

That came after the Supreme Court last year rejected the administration’s last-minute attempts to add a citizenship question to the census; Trump has asked the bureau to use other data sources, including federal databases, to devise the number of undocumented immigrants in each state.

After the memorandum was published, municipalities and activists immediately sued the administration, arguing that excluding undocumented immigrants from the counts used to assign House seats is an unconstitutional power grab. A lower court blocked Trump’s memorandum last month, and the administration took its case directly to the Supreme Court.

The 14th Amendment requires districts to apportion congressional seats based on "counting the whole number of persons in each State, excluding Indians not taxed."

In Trump’s memorandum, he argued that the "discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status."

Removing those immigrants from the population counts would shift power to less diverse states. A Pew Research Center study last year found that it could result in House seats that would otherwise be assigned to California, Florida and Texas going instead to Alabama, Minnesota and Ohio — each of which is set to possibly lose a House seat in the next decade due to population shifts.

And drawing new districts within the states based only on the counts of citizens and legal immigrants would likely benefit Republicans, shifting power from cities and immigrant communities to rural parts of the states, which vote for GOP candidates at higher rates.

By the time the high court hears this case, federal Judge Amy Coney Barrett could be confirmed as the ninth justice, cementing a conservative majority. Senate Republicans hope to confirm her nomination to the Supreme Court before the election on Nov. 3.

The case, Trump v. New York, is just the latest piece of litigation over the decennial census to reach the high court. In addition to rejecting the Trump administration’s attempts to add the citizenship question, the Supreme Court earlier this week allowed the administration to end the counting stage of the census early.

At the start of the coronavirus pandemic, the Census Bureau said it needed more time to complete counting and processing, asking Congress to allow it to deliver the apportionment counts by the end of April 2021. But Congress never granted that four-month extension, and the bureau said in August it would seek to end the count by the end of September — which could ensure that Trump, even if he loses the presidential election, will be in the White House for the apportionment counts.

A lower-court judge had ordered the bureau to keep counting through the end of this month — but the Supreme Court set aside that ruling earlier this week, and the census enumeration was allowed to conclude early Friday morning.

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