Supreme Court to Hear Trump’s Bid to Exclude Illegal Aliens From Census

October 17, 2020 Updated: October 18, 2020

The Supreme Court has agreed to review a Trump administration effort to exclude illegal aliens from the 2020 census count that is used to apportion congressional seats.

In an unsigned order (pdf) on Oct. 16, the justices set a Nov. 30 date to hear oral arguments from the parties.

A three-judge panel in a New York district court in September ruled that Trump’s memorandum excluding illegal aliens from congressional apportionment count was an illegal overreach of the president’s authority as delegated by Congress. The judges on that panel declared the memo, which was issued on July 21, as unlawful and subsequently blocked it from being implemented.

This prompted the Trump administration to appeal the decision to the top court.

In their 86-page decision (pdf), the judges said that federal law required the use of one set of numbers to count people for the census and in the process of redrawing congressional districts, known as apportionment. As long as the illegal immigrants are living in the United States, “illegal aliens qualify as ‘persons in’ a ‘state’” who should be counted, the judges ruled.

The July 21 memo, which is at the center of the case, stated that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status,” for the purpose of the reapportionment of Congress members following the 2020 census.

“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of government. Affording congressional representation, and therefore formal political influence, to states on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles,” the memo states.

ICE activity
A DHS agent making an arrest as part of a weeklong effort in California targeting criminal aliens, Sept. 28-Oct. 2, 2020. (Michael Johnson/U.S. Immigration and Customs Enforcement)

Trump ordered the Department of Commerce to report two sets of numbers for each state based on the 2020 census: the total count of the population, and the total population minus the number of illegal immigrants. The latter number would be used to apportion congressional seats.

In July, Trump said in a statement that his administration “will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government.”

“Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all,” the president said.

Shortly after the memo was issued, 38 mostly Democratic-leaning states, cities, and counties, plus several immigrants’ rights nonprofits, sued the Trump administration, arguing that it was “motivated by discriminatory animus toward Hispanics and immigrant communities of color.”

They argued that the memo could leave millions of people uncounted and possibly affect congressional apportionment in several states.

Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, in a statement on Oct. 16 accused Trump of repeatedly weaponizing the census to “attack” illegal aliens.

“The Supreme Court rejected his attempt last year and should do so again,” he said.

Last year, the Supreme Court blocked the Trump administration from adding a citizenship question to the decennial population survey.

The Constitution requires the census to be collected every 10 years. The information gathered from the questionnaire helps determine representation in Congress based on states’ respective populations, as well as the allocation of federal government funding.

Mimi Nguyen-Ly contributed to this report.

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