The Trump administration urged the Supreme Court to exclude illegal aliens from the 2020 Census count, which eliminates that population from the allocation of congressional seats and Electoral College votes that officially determine the presidency.
Oral argument took place telephonically on Nov. 30 in the case known as Trump v. New York. The hearing was scheduled to last 80 minutes but ran 93. The nation’s highest court put the case on a fast track because various census-related deadlines are nearing. A decision could come down by year’s end.
The Trump administration wants illegal aliens removed from the decennial census count to prevent them from having an impact on the apportionment of political power among the states. The court’s eventual ruling in the case could have national ramifications.
States and local governments, including so-called sanctuary jurisdictions, which refuse to cooperate with federal immigration officials, sued to prevent the administration’s plan from moving forward. They argued that President Donald Trump, a Republican, was attempting to interfere with the count and prevent Democratic-leaning areas with large illegal-alien populations from gaining congressional seats.
During the hearing, Justice Amy Coney Barrett told Acting Solicitor General Jeffrey Wall that “a lot of the historical evidence and longstanding practice really cuts against your position. ... There’s evidence that in the founding era, an inhabitant was a dweller who lives or resides in a place.”
The Supreme Court has held that “if you’ve entered illegally, you are not treated as if you’re dwelling or residing here; you’re treated as if you’re stopped at the border,” Wall replied.
“[The other side] doesn’t really have any answer to why those cases shouldn’t equally apply here and say, look, if the test is usual or settled resident, you’re not thought to be a resident, and even if you are, there’s nothing usual or settled about your residence if your presence is violating federal law and the sovereign hasn’t agreed to let you stay.”
Barrett asked, “If an undocumented person has been in the country for, say, 20 years ... even if illegally, as you say, why would ... such a person not have a settled residence here?”
Wall responded, “Somebody who’s worked at an embassy for 15 or 20 years … certainly has ties to the community, and yet we have excluded them in some past censuses because they’re not the sort of ties, just as with illegal aliens, that amount to residence or dwelling or what” the Supreme Court’s 1993 ruling in Franklin v. Massachusetts “calls allegiance or an enduring tie.”
New York Solicitor General Barbara D. Underwood told the court that the Trump administration was wrong.
“The Constitution and laws require the seats in the House be apportioned according to the number of persons in each state,” she said.
The Trump policy “treats counting people as a reward to be withheld from states that house undocumented immigrants. But our law views counting people for apportionment as finding fact, not giving and withholding rewards,” Underwood said.
Justice Brett Kavanaugh told Underwood, “You have advanced forceful constitutional and statutory arguments on the merits of a categorical exclusion of all unlawful non-citizens.”
Barrett suggested to Underwood that the Trump administration may have discretion to decide which categories of people may be excluded from the census count, and that resolving the legal issues in this case with undue haste could generate more legal problems later.
Barrett said that if, as Wall explained, the Trump administration is “only able to identify certain categories and ... if that means that there would be litigation on a case-by-case basis about whether such categories should be in or out, doesn’t that cut in favor of waiting, that maybe there’s no injury here because we’re not really sure what the contours of the decision would be?”
Excluding individuals on the basis of their immigration status is something the framers of the Constitution rejected, Underwood said.
“People who live in a state without lawful immigration status still live there. They are not invisible. And, like other residents, voting and non-voting, their presence requires attention from the government, and the need for representatives to give that attention.”