Law & Courts

Justices Weigh Trump Effort to Exclude Undocumented Immigrants From Key Census Tally

By Mark Walsh — November 30, 2020 7 min read
In this Nov. 14., 2020, file photo supporters of President Donald Trump attend pro-Trump marches outside the Supreme Court Building in Washington. The Supreme Court is hearing arguments over whether the Trump administration can exclude people in the country illegally from the count used for divvying up congressional seats.
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In a case being watched by educators, the U.S. Supreme Court on Monday expressed concerns about uncertainties swirling around President Donald Trump’s effort to exclude undocumented immigrants from final census numbers used to calculate congressional apportionment.

The president’s plan, stemming from a memorandum he issued in July, has been challenged as a violation of the U.S. Constitution and federal law by several states, cities, and immigration groups. Education groups worry that an apportionment number that excludes undocumented immigrants would affect the ways census figures are used to allocate billions of dollars in federal education aid.

The National School Boards Association and five other education groups say in a friend-of-the-court brief that they are concerned that if the high court “does not restrain the directive contained in the presidential memorandum, ... numerous federal programs that apportion funding to state and local education agencies based on clear formulas provided by statute are subject to tinkering at Executive whim.”

The funding issue, though secondary to questions surrounding apportionment, got a brief bit of attention during the 93-minute telephone argument in Trump v. New York (Case No. 20-366).

Justice Stephen G. Breyer noted that many statutes divide federal funds among the states on the basis of figures from “the decennial census.”

“Does that tie to the [apportionment] report?” Breyer said. “I think it does.”

Barbara D. Underwood, the New York state solicitor general, said the answer to that question was unclear because the Trump administration has “sometimes said that a transmission of two sets of numbers is all part of the [apportionment] report, and they have sometimes said it’s separate.”

Time Frame Issue

But most of the argument was devoted to uncertainties surrounding the time frame of the case, which includes a Dec. 31 deadline for Secretary of Commerce Wilbur L. Ross Jr. to deliver an apportionment number to the president and a deadline of around Jan. 10 for Trump to deliver that number to the House of Representatives.

Challengers to Trump’s memorandum argue that the Constitution, federal law, and longtime historical practice call for counting all persons residing in the country on Census Day (which was April 1 this year) save for a few small categories such as foreign diplomats. Demographic experts have predicted that excluding undocumented immigrants would likely cost immigrant-heavy states including California, New Jersey, and Texas a congressional seat, while Alabama, Minnesota, and Ohio may gain a seat they would otherwise lose due to population shifts.

With the Trump administration was thwarted from asking about citizenship on this year’s census after a prior challenge, federal officials have been working to match administrative data (such as driver’s license information) with census responses.

There are an estimated 10.5 million to 12 million undocumented immigrants residing in the United States (to use a more conservative range) out of an estimated current U.S. population of 330 million. A key question during the argument is how much of that undocumented population the Census Bureau will be able to exclude from the apportionment number, especially given that earlier this month the bureau’s director announced that “certain processing anomalies have been discovered.”

Acting U.S. Solicitor General Jeffrey B. Wall told the justices that he had received an update just before the argument.

“As of this very morning, career experts at the Census Bureau confirmed with me that they still don’t know even roughly how many illegal aliens it’ll be able to identify, let alone how their number and geographic concentration might affect apportionment,” Wall said. He said that uncertainty supported the government’s argument that the challenge should be dismissed as unripe and that opponents of the president’s memorandum wait to file a new case after the apportionment numbers are applied.

Wall said the administration was “not currently on pace” to meet the Dec. 31 deadline for Ross to send his report to the president. The administration may end up seeking to exclude as few as some 50,000 immigrants in Immigration and Customs Enforcement detention centers, but “the situation is fairly fluid,” he said.

“I pressed the deputy director of the Census Bureau on this very question, and the simple fact is that the experts don’t know,” Wall said. “They don’t know whether it’ll be 50,000 or 100,000 or 500,000 or a million. So there’s just substantial uncertainty.”

Justice Elena Kagan said the government has been working for more than a year on administrative databases, and could likely match data to exclude a much larger number, including the 700,000 beneficiaries of the Deferred Action for Childhood Arrivals, or DACA, program, and some 3.2 million immigrants undergoing removal proceedings but not in government custody.

“What I’m getting from you is we can get very easily to 4 or 5 million people who you have extensive administrative records on, and you’re saying, ‘Well, there’s a matching problem.’,” Kagan told Wall. “You’re 30 days out. It seems to me you either know whether you can do matching or you don’t know whether you can do matching.”

Presidential Authority

On the merits, Wall argued that the president has the authority to request two sets of numbers from the commerce secretary, and leeway in excluding least some undocumented immigrants from the apportionment count.

“The president has at least some discretion to determine that at least some illegal aliens lack enduring ties to the states,” Wall said.

The election of former Vice President Joe Biden as the next president was not brought up during the argument, though legal experts say that even if the Supreme Court rules for Trump and he is able to exclude some number of undocumented immigrants from apportionment before he leaves office, Biden may be able to undo that action.

Underwood said, “The Constitution and laws require the seats in the House be apportioned according to the number of persons in each state.”

“The memorandum treats counting people as a reward to be withheld from states that house undocumented immigrants,” she said. “The memorandum pretends that if under the law a person should not be here, then the person is not here. The government can do many things to induce undocumented immigrants to leave, but it cannot declare them to be gone when, in fact, they’re here and likely to remain.”

Dale E. Ho, the director of the Voting Rights Project at the American Civil Liberties Union, argued for a group of immigration groups that also challenged the Trump memorandum.

“No court, no Congress, and no executive branch before now has ever thought that undocumented immigrants could be excluded from the whole number of persons in each state,” Ho said.

Given the procedural ambiguities involved in the case, the justices were a bit hard to read on their views on the merits, though even some of the court’s conservatives appeared skeptical of the president’s plan on the merits.

“A lot of the historical evidence and longstanding practice really cuts against your position,” Justice Amy Coney Barrett told Wall.

Justice Brett M. Kavanaugh told Underwood that she had “advanced forceful constitutional and statutory arguments on the merits of a categorical exclusion of all unlawful non-citizens. But I’m not sure that’s going to be the dispute.”

He said the argument has revealed that “it’s not going to be particularly feasible to exclude all of the non-citizens. We’re going to be left with categories.”

Justice Samuel A. Alito Jr. said, “It could be that we are dealing with a possibility that is quite important. It could be that this is much ado about very little. It depends on what the Census Bureau and the Department of Commerce are able to do.”

The Census and Education Funding

The NSBA brief on the funding issue was joined by National Association of Secondary School Principals, the National Association of Elementary School Principals, the Association of School Business Officials International, the National Education Association, and AASA, the School Superintendents Association.

The brief points out that census data are used for the allocation of funds under the National School Lunch Program, Head Start, the Title I compensatory education program, and grants under the Individuals with Disabilities Education Act. The brief notes that the federal district court in New York City that blocked the president’s memorandum in this case “determined that by decreasing the participation of certain populations, the memorandum injured the [challengers] by degrading the quality of census data—the foundation for numerous policy decisions.”

Because the Supreme Court scheduled expedited arguments at the Trump administration’s request, a decision in the case is expected by the end of December, or by early January.

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

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