Supreme Court to Consider Whether Census Must Count Illegal Immigrants in Allocating House Seats
By: Jess Bravin (WSJ)
WASHINGTON—The Supreme Court said Friday it would decide whether President Trump can exclude illegal immigrants from the census count used to determine congressional representation, setting an expedited schedule with arguments on Nov. 30.
In July, Mr. Trump issued an order that for the first time would exclude what it called “illegal aliens” from the decennial reapportionment of House seats among the states. The move would likely shift representation from urban areas and Democratic-trending states toward more rural and Republican-leaning states with smaller immigrant populations.
“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy,” Mr. Trump’s order stated. “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”
Mr. Trump appeared to target California in particular. The order said, “one State is home to more than 2.2 million illegal aliens.” Counting them “for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated,” it stated.
A coalition of states led by New York, along with local governments and civil-rights groups, sued to stop the move. In September, a special three-judge court in New York found that Mr. Trump’s plan violated the Census Act, which, following the Constitution’s text, directs the president to transmit to Congress “the whole number of persons in each State, excluding Indians not taxed” and “the number of Representatives to which each State would be entitled” as a result.
The administration didn’t cite a “single example in the historical record where any branch of the Government adopted the interpretation of the Constitution that they now advance,” the court observed.
In its appeal to the Supreme Court, the Justice Department argued that the president enjoyed discretion to decide how to define the population entitled to representation during reapportionment.
“In the apportionment context, the phrase ‘persons in each State’ has long been understood to cover only a State’s ‘inhabitants,’ ” which implicitly affords the president discretion, acting Solicitor General Jeffrey Wall argued. “And as text, history, and precedent reveal, the term ‘inhabitants’ does not completely bar the President from exercising discretion to exclude illegal aliens.”
He wrote that foreign tourists who may be present on census day aren’t counted, and neither are foreign diplomats.
In response, New York Attorney General Letitia James told the court that “following Congress’s consistent legislative directive, every decennial census has enumerated and included in the apportionment base all persons who usually reside here, without regard to immigration or other legal status—with the sole exceptions of Indians not taxed and slaves under the three-fifths clause.”
The latter clause was nullified by the 13th and 14th amendments, which abolished slavery in 1865 and established the current reapportionment criteria three years later.
The Trump administration has been seeking to exclude immigrants in the U.S. without legal permission from the reapportionment base almost since taking office in 2017. It initially sought to place a citizenship question on the census questionnaire, asserting that its motivation was to improve compliance with the Voting Rights Act of 1965, which protects minority voters.
Federal courts found that claim to be a pretext, and separate litigation brought to light evidence the involvement in the plan of a Republican political consultant who wrote that the question “would clearly be a disadvantage to the Democrats” and would be “advantageous to Republicans and Non-Hispanic Whites.”
Last year, the Supreme Court, by a 5-4 vote, blocked the administration from including the citizenship question. Chief Justice John Roberts, joined by four liberal justices, found that Commerce Secretary Wilbur Ross apparently “contrived” a phony rationale for adding the question, violating federal law that requires transparency and reasoned decisions in policy-making.
That 2019 decision stunned the administration and led to days of confusion over whether the administration would attempt a legal workaround to get the question on the form. Ultimately, the president was persuaded that such a move was impossible. Instead the administration sought to count citizens and non-citizens by matching census responses with citizenship-verified records from state and federal agencies. This would let states use just citizen totals to draw political districts, although that also would likely face a court challenge.