Jus­tices take up cen­sus dis­pute

AP­POR­TION­MENT OF HOUSE IS AT STAKE Trump: Un­doc­u­mented shouldn’t be in­cluded

The Washington Post - - FRONT PAGE - BY ROBERT BARNES

The Supreme Court an­nounced Fri­day that it will re­view Pres­i­dent Trump’s at­tempt to ex­clude un­doc­u­mented im­mi­grants when cal­cu­lat­ing how con­gres­sional seats are ap­por­tioned among the states.

The un­prece­dented pro­posal could have the ef­fect of shift­ing both po­lit­i­cal power and bil­lions of dol­lars in fed­eral funds away from ur­ban states with large im­mi­grant pop­u­la­tions and to­ward ru­ral and more Repub­li­can in­ter­ests.

A three-judge panel in New York said Trump’s July 21 mem­o­ran­dum on the mat­ter was “an un­law­ful ex­er­cise of the au­thor­ity granted to” him by Congress. It blocked the Com­merce Depart­ment and the Cen­sus Bu­reau from in­clud­ing in­for­ma­tion about the num­ber of un­doc­u­mented im­mi­grants — it is un­clear how those num­bers would be gen­er­ated — in their re­ports to the pres­i­dent af­ter this year’s cen­sus is com­pleted.

The jus­tices put the case on a fast track and said they will hold a hear­ing Nov. 30. By then, it prob­a­bly will be a nine-mem­ber court again, if Judge Amy Coney Bar­rett is con­firmed, giv­ing the court a 6-to-3 con­ser­va­tive ma­jor­ity. The ad­min­is­tra­tion says tim­ing mat­ters, be­cause it must present the plan to Congress in Jan­uary.

It is un­clear whether the mat­ter would di­vide the court along ide­o­log­i­cal lines, but the is­sue is an­other mark of how the once

a-decade cen­sus has been trans­formed from a largely bu­reau­cratic ex­er­cise into the cen­ter­piece of a par­ti­san bat­tle.

The Supreme Court ear­lier this week agreed with the Trump ad­min­is­tra­tion that it could stop the count of Americans, de­spite fears that the novel coro­n­avirus and other prob­lems will lead to an un­der­count of mi­nori­ties and those in hard-to-reach com­mu­ni­ties. Lower courts had said the count should con­tinue un­til the end of the month. But that might have made it hard to get the in­for­ma­tion to Trump by year’s end — a timetable that car­ries ad­di­tional im­por­tance in an elec­tion year.

In 2019, the jus­tices re­jected the Trump ad­min­is­tra­tion’s plan to add a cit­i­zen­ship ques­tion to the cen­sus form, which ex­perts said would dis­cour­age par­tic­i­pa­tion by both le­gal and un­doc­u­mented im­mi­grants. Chief Justice John G. Roberts Jr. wrote the 5-to-4 de­ci­sion, say­ing the ad­min­is­tra­tion did not fol­low proper pro­ce­dure for in­tro­duc­ing the ques­tion, and that its ra­tio­nale was “con­trived.”

“Pres­i­dent Trump has re­peat­edly tried — and failed — to weaponize the cen­sus for his at­tacks on im­mi­grant com­mu­ni­ties,” said Dale Ho, di­rec­tor of the ACLU’S Vot­ing Rights Project, which is a party to the lit­i­ga­tion. “The Supreme Court re­jected his at­tempt last year and should do so again. The le­gal man­date is clear — ev­ery sin­gle per­son counts in the cen­sus, and ev­ery sin­gle per­son is rep­re­sented in Congress.”

The lat­est con­tro­versy in­volves the con­sti­tu­tional man­date that ap­por­tion­ment of seats in the House of Rep­re­sen­ta­tives be based on the “whole num­ber of per­sons in each State.” That has been in­ter­preted to mean ev­ery res­i­dent, re­gard­less of im­mi­gra­tion sta­tus.

But this sum­mer, Trump is­sued a mem­o­ran­dum that said, for the first time, “it is the pol­icy of the United States to ex­clude from the ap­por­tion­ment base aliens who are not in a law­ful im­mi­gra­tion sta­tus.”

Trump’s mem­o­ran­dum in­di­cated he be­lieved that some states would be get­ting more con­gres­sional seats than de­served — Cal­i­for­nia was im­plied but not named — be­cause of their num­bers of un­doc­u­mented res­i­dents.

Trump di­rected Com­merce Sec­re­tary Wil­bur Ross to pro­vide him with two sets of num­bers, one that in­cludes unau­tho­rized im­mi­grants and one that does not, “to the max­i­mum ex­tent fea­si­ble and con­sis­tent with the dis­cre­tion del­e­gated to the ex­ec­u­tive branch.”

Even the ad­min­is­tra­tion does not in­di­cate how that would be ac­com­plished, as the cen­sus does not ask about cit­i­zen­ship. “The Cen­sus Bu­reau is still eval­u­at­ing the ex­tent to which, as a prac­ti­cal mat­ter, ad­min­is­tra­tive records per­tain­ing to im­mi­gra­tion sta­tus can be used to iden­tify and ex­clude il­le­gal aliens from the ap­por­tion­ment pop­u­la­tion count,” act­ing solic­i­tor gen­eral Jef­frey B. Wall said in a fil­ing to the Supreme Court.

Still, Wall said, “there is am­ple his­tor­i­cal and struc­tural ev­i­dence sup­port­ing the pres­i­dent’s pol­icy de­ter­mi­na­tion that the stan­dard does not ap­ply to all aliens liv­ing within a ju­ris­dic­tion with­out the sovereign’s per­mis­sion to set­tle there.”

A coali­tion of 22 states and the District of Columbia, 15 cities and coun­ties and the United States Con­fer­ence of May­ors im­me­di­ately chal­lenged the mem­o­ran­dum, as did a num­ber of non­govern­men­tal or­ga­ni­za­tions rep­re­sented by the ACLU.

“The mem­o­ran­dum im­ple­ments a pol­icy that breaks with more than two hun­dred years of his­tory and vi­o­lates the plain text and pur­pose of both the Cen­sus Act and the Con­sti­tu­tion,” New York At­tor­ney Gen­eral Leti­tia James said in a brief filed with the Supreme Court.

The chal­lengers said in their brief that Cal­i­for­nia, Texas and New Jersey would be likely losers if the en­tire pop­u­la­tion is not used in the cal­cu­la­tions. Ev­ery 10 years, Congress is reap­por­tioned be­cause of the cen­sus, and a state’s del­e­ga­tion — and by ex­ten­sion its clout in the elec­toral col­lege — is de­ter­mined.

States draw their own con­gres­sional district lines, and the new dis­tricts would de­but in the 2022 con­gres­sional elec­tions.

A spe­cial three-judge panel of fed­eral judges in New York — two nom­i­nated by Pres­i­dent Ge­orge W. Bush and one by Pres­i­dent Barack Obama — agreed with the chal­lengers. They said in a lengthy but un­signed opin­ion that the ques­tion is “not par­tic­u­larly close or com­pli­cated” based on fed­eral law.

“In short,” the judges wrote, “the sec­re­tary is re­quired to re­port a sin­gle set of fig­ures to the pres­i­dent — namely, the tab­u­la­tion of to­tal pop­u­la­tion by states un­der the de­cen­nial cen­sus — and the pres­i­dent is then re­quired to use those same fig­ures to de­ter­mine ap­por­tion­ment us­ing the method of equal pro­por­tions.”

They added: “Leg­isla­tive his­tory and set­tled prac­tice con­firm our con­clu­sion that ‘ per­sons in each state’ turns solely on res­i­dency, with­out re­gard for le­gal sta­tus.”

The Supreme Court is re­quired to weigh in on de­ci­sions in­volv­ing reap­por­tion­ment, and it must ei­ther af­firm or re­verse the panel’s ac­tion.

But the ad­min­is­tra­tion will ar­gue that de­cid­ing the case now is pre­ma­ture. Wall said it is only “spec­u­la­tive” at this point whether the states or the groups will be harmed. “It is still un­cer­tain to what ex­tent it will be ‘fea­si­ble’ for the ex­ec­u­tive branch to ex­clude il­le­gal aliens from the ap­por­tion­ment base,” Wall wrote.

He said chal­lenges must wait. “Af­ter the sec­re­tary sub­mits his re­port and any ef­fects of the Mem­o­ran­dum on ap­por­tion­ment and fund­ing have been de­ter­mined, any in­jured par­ties may seek re­view, con­sis­tent with this court’s nor­mal ap­proach,” he wrote.

The case is Trump v. State of New

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