Santa Fe New Mexican

Ruling on immigrant exclusion in census is delayed

- By Adam Liptak

WASHINGTON — The Supreme Court on Friday dismissed a lawsuit challengin­g the Trump administra­tion’s plan to exclude immigrants in the country illegally from the calculatio­ns used to allocate seats in the House, saying it was premature.

The court’s ruling handed the Trump administra­tion an interim victory, allowing it to continue to pursue an effort that could shift the allotment of both congressio­nal seats and federal money to states that are older, whiter and typically more Republican.

“At present,” the court said in an unsigned opinion, “this case is riddled with contingenc­ies and speculatio­n that impede judicial review.”

“We express no view on the merits of the constituti­onal and related statutory claims presented,” the opinion said. “We hold only that they are not suitable for adjudicati­on at this time.”

The court’s three liberal members dissented. They said the case was far enough along for a decision and that they would have ruled the plan unlawful.

“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,” Justice Stephen Breyer wrote in a dissent joined by Justices Sonia Sotomayor and Elena Kagan. “The government’s effort to remove them from the apportionm­ent base is unlawful, and I believe this court should say so.”

“Where, as here, the government acknowledg­es it is working to achieve an allegedly illegal goal,” Breyer wrote, “this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.”

Dale Ho, a lawyer with the American Civil Liberties Union, which represents some of the challenger­s, said the ruling was a temporary setback. “This Supreme Court decision is only about timing, not the merits,” he said in a statement. “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 practical effect of the ruling may be limited, because Census Bureau officials have said they may not be able to produce data on immigrants in the country illegally before President Donald Trump leaves office. When the case was argued last month, Jeffrey Wall, the acting solicitor general, acknowledg­ed the situation was fluid and that the bureau may not be able to identify many of the immigrants.

By law, the Commerce Department is required to supply census informatio­n to the president by the end of the year, but it may not be able to meet that deadline. Wall indicated that the Census Bureau does have good data on the tens of thousands of immigrants in the country illegally held by Immigratio­n and Customs Enforcemen­t, but that number is almost certainly too small to change apportionm­ent.

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