Census exclusion order argued before 3 judges

ORLANDO, Fla. — President Donald Trump’s directive to exclude people in the U.S. illegally from being counted when the number of congressional seats in each state is determined is an unlawful order, an attorney for the U.S. House of Representatives told judges Tuesday.

But attorneys for the Trump administration told a panel of three federal judges in the District of Columbia that the president has the discretion to decide who is considered an inhabitant of the U.S. for the purposes of determining how many congressional seats each state gets, a process known as apportionment.

Tuesday’s court arguments were part of the latest hearing on Trump’s July memorandum. Arguments already have been made in cases in Maryland and New York, where a three-judge panel blocked the presidential order earlier this month, ruling that it was unlawful.

The New York judges’ order prohibits Commerce Secretary Wilbur Ross, whose agency oversees the Census Bureau, from excluding people in the country illegally when handing in 2020 census figures used to calculate apportionment. The Trump administration has appealed to the U.S. Supreme Court.

But the New York judges didn’t rule on the constitutionality of the memorandum, merely saying it violated federal laws on the census and apportionment, leaving open the door for the judges in the nation’s capital to rule on other aspects of the president’s memorandum. Other lawsuits challenging the memorandum have been filed in California, Maryland and Massachusetts.

One of the aspects that the judges indicated they may consider is whether the Census Bureau will have to use statistical sampling to determine how many people are in the country illegally since there is no citizenship question on the 2020 census that could help answer that. The Supreme Court has ruled that statistical sampling can’t be used for the apportionment count.

To help figure out that number, Trump issued another memorandum last year, directing the Census Bureau to use federal and state administrative records to find out the citizenship status of every U.S. resident. The Census Bureau hasn’t yet made public how it will use those records to come up with a method for answering that question.

Under questioning from the federal judges, federal government attorney Sopan Joshi said the Census Bureau had no intention of using statistical sampling.

The Washington lawsuit was filed by a coalition of cities and public interest groups, that argued that the president’s order was part of a strategy to enhance the political power of Republicans

and non-Hispanic whites. The U.S. House of Representatives later offered its support on behalf of the plaintiffs.

The Trump administration on Tuesday asked that the lawsuit be dismissed, saying it was premature since it’s impossible to know who will be affected by the exclusion order before the head count is finished and whether the Census Bureau will come up with a method for figuring out who is a citizen.

But Gregory Diskant, an attorney for one of the plaintiffs, Common Cause, said waiting to challenge the president’s memo until after the apportionment numbers are turned in would create even greater problems.

Douglas Letter, the attorney for the U.S. House of Representatives, told the judges that since the nation’s founding all three branches of government have believed that the apportionment count included noncitizens, regardless of whether they were in the country legally.

“It’s just not right for a president to come in and say, without explanation, “I’m changing that,’” Letter said.

The arguments in Washington came as a legal battle over the 2020 census schedule was being fought in a San Jose, Calif., courtroom. The census helps determine how many congressional seats each state gets during apportionment, as well as the distribution of $1.5 trillion in federal spending annually.