Law & Courts

Supreme Court Tosses Challenge to Exclusion of Undocumented Immigrants From Census

By Mark Walsh — December 18, 2020 3 min read

In a case being watched for its potential impact on federal education funding, a divided U.S. Supreme Court held Friday that it would be premature to rule on the legality of President Donald Trump’s plan to exclude undocumented immigrants from the final census tally he reports to Congress.

“At present, this case is riddled with contingencies and speculation that impede judicial review,” the majority said in an unsigned opinion in Trump v. New York (Case No. 20-366).

The president’s goal has been to exclude undocumented immigrants from the final census number that the secretary of commerce is required to finalize by Dec. 31 and that the president is supposed to deliver to the new Congress in early January to be used for the apportionment of seats in the U.S. House of Representatives.

But oral arguments in the case in late November confirmed that the Census Bureau is not on track to finish the work of matching administrative records revealing citizenship status with census responses to be able to exclude all of the estimated 10.5 million undocumented immigrants from the tally.

“Any prediction how the Executive Branch might eventually implement [the president’s] statement of policy is no more than conjecture at this time,” the court said in the per curiam opinion.

The upshot of the ruling is that the Trump administration can use its final weeks in office to try to complete the president’s goal of excluding undocumented immigrants from the apportionment figure.

Opponents of the Trump plan say it is both unconstitutional and against federal statute, as well as not in keeping with a long history of counting all inhabitants in the country as part of the census. Their central concern is that the plan would likely cost immigrant-heavy states including California, New Jersey, and Texas a congressional seat after reapportionment, while Alabama, Minnesota, and Ohio may gain a seat they would otherwise lose due to population shifts.

But the opponents also worry that the apportionment figure would affect the way billions of dollars in federal funding tied to census figures is allocated, including for education programs. Education groups led by the National School Boards Association filed a friend-of-the-court brief in the case laying out those concerns.

Credence on Funding Concerns

Justice Stephen G. Breyer, in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, said the case was ripe for resolution and that he would strike down the president’s plan as unlawful. The president’s July memorandum “violates Congress’ clear command to count every person residing in the country, and should be set aside.”

Breyer’s 21-page dissent gave credence to the opponents’ concerns about funding.

“Indeed, a number of federal statutes require that funding be allocated based on the results ‘certified,’ ‘stated,’ or ‘reported,’ by the decennial census,” Breyer said. “These phrases seem always to have been understood to refer to the apportionment tabulation reported to the president by the secretary of Commerce (the report here at issue), because that is the only tabulation that the law requires to be ‘certified’ or ‘reported’ as part of the decennial census.”

Breyer said there was no guarantee that, as the Trump administration has argued, the commerce secretary would add back the excluded immigrants to the census tally for funding calculations.

“Statute after statute pegs its funding to a state’s share of ‘the total population of all the states as determined by the last preceding decennial census,’” Breyer said, quoting language from several such laws. “Given the connection between the decennial census and funding allocation, a change of a few thousand people in a state’s enumeration can affect its share of federal resources.”

The majority, in the unsigned opinion, said the plan’s “impact on funding is no more certain” than its affect on reapportionment.

“According to the government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum,” the majority said. Under that view, the majority added, changes to the commerce secretary’s report or to the president’s statement to Congress “will not inexorably have the direct effect on downstream access to funds or other resources predicted by the dissent.”

Neither the arguments nor the opinion in the case addressed the forthcoming change in presidential administrations, and whether once President-elect Joseph R. Biden Jr. takes office any changes made by the Trump administration on final census numbers could be reversed.

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