Supreme Court to Consider Trump Effort to Exclude Some From Key Census Figure

By Mark Walsh — October 16, 2020 3 min read
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In a case with potential implications for education, the U.S. Supreme Court on Friday agreed to hear arguments in a case about whether President Donald Trump may order that undocumented immigrants be excluded from final 2020 census figures that will be used to reapportion congressional districts.

Lower court judges who ruled on the case said the outcome of the dispute could affect the overall accuracy of the census and how funds are allocated to schools.

The decennial census has traditionally counted undocumented immigrants residing in the United States, and the 2020 census will include a similar report of the “whole population.” In July, however, Trump issued a memo asking U.S. Secretary of Commerce Wilbur L. Ross Jr. to come up with a second number for the “apportionment base” that excludes undocumented immigrants.

“It is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status,” the president’s memo said.

The policy was challenged by New York state, 21 other states, and the District of Columbia, as well as a number of cities and other plaintiffs.

In September, a special three-judge federal district court held unanimously that the Trump memo violates federal law. The court said the second set of numbers would be derived from something other than the census itself since the Census Bureau was barred from asking about citizenship on the 2020 questionnaire and would have to use administrative records and other data to make estimates about the number of undocumented immigrants.

The court noted in addition to the reapportionment of Congress, census figures are used to distribute federal funds and by states, cities, and school districts to make decisions.

“Any undercounting of undocumented immigrants caused by the presidential memorandum will” affect funding of a host of programs, the court said.

The court noted that New York City relies on “granular local-level ‘characteristic data,’ to perform essential government functions” such as redrawing school attendance zone boundary lines. Connecticut uses such data to evaluate local request for school construction funds, the court said.

The Trump administration asked the Supreme Court to take up the case, noting that the commerce secretary must deliver his final census report to the president by Dec. 31 of this year. The administration emphasizes the scope of the term “inhabitants” as long used in census laws.

“Concepts of allegiance and enduring ties necessarily place limits on illegal aliens’ qualifying as ‘inhabitants,’ given that they are subject to removal by the government,” Acting U.S. Solicitor General Jeffrey B. Wall said in a brief. “Accordingly, the requirement to include each state’s ‘inhabitants’ in the apportionment base, whether constitutional or statutory, does not completely eliminate the president’s discretion to exclude illegal aliens.”

In a court filing on behalf of the challengers, New York state Attorney General Letitia James said the political motivations of the president’s effort was clear.

“The memorandum makes clear that the president seeks to reallocate political power among the states and to weaken the political influence of states with larger populations of undocumented immigrants,” the brief states, adding that California, New Jersey, and Texas would likely lose at least one House seat each under the president’s approach.

And the challengers read the Trump administration’s legal briefs to suggest that it may seek to exclude undocumented immigrants from the full census count. That would seriously affect the distribution of federal funds and state and local redistricting, the challengers say.

The Supreme Court issued a brief order Friday that set the case of Trump v. New York (No. 20-366) for oral argument on Nov. 30.

A version of this news article first appeared in The School Law Blog.