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Supreme Court Takes Wait-and-See Approach to Trump’s Anti-Immigrant Census Policy

Under the plan, undocumented immigrants would not be counted in apportioning representation in the House among the states.

The Supreme Court has concluded that federal courts cannot rule on the legal­ity of Pres­id­ent Trump’s plan to exclude undoc­u­mented people from the Census count used to distrib­ute congres­sional seats to each state. The Court’s decision in Trump v. New York allows Pres­id­ent Trump to try to imple­ment his plan by lift­ing lower court rulings block­ing it.

This latest devel­op­ment sets the stage for more litig­a­tion over Trump’s attempts to evade the long­stand­ing consti­tu­tional rule that every­one counts, regard­less of their citizen­ship status, and casts an omin­ous cloud over the upcom­ing appor­tion­ment.

The Consti­tu­tion requires that seats in the House be appor­tioned among the states based on “the whole number of persons in each state.” The more people in a state, the more people in Congress to repres­ent them. The fewer people, the fewer congres­sional seats. For 230 years, every branch of govern­ment has under­stood this require­ment to count all persons for appor­tion­ment to mean just that: “persons” means people, and “people” means every­one.

In July, however, Trump announced his intent to depart from this rule, issu­ing a memor­andum declar­ing that he would exclude undoc­u­mented people from the appor­tion­ment base, solely on the basis of their immig­ra­tion status. Lawsuits — and losses for the Trump admin­is­tra­tion — quickly followed.

The first ruling came from a three-judge federal district court sitting in New York, which unan­im­ously concluded that the plan was illegal, writ­ing that “[t]he merits of the parties’ dispute are not partic­u­larly close or complic­ated.” After the Trump admin­is­tra­tion appealed the New York decision to the Supreme Court, two other three-judge panels — one in Cali­for­nia and one in Mary­land — weighed in, agree­ing that the plan was illegal for a combin­a­tion of consti­tu­tional and stat­utory reas­ons.

Through­out its Supreme Court oral argu­ment last month, the admin­is­tra­tion sent mixed messages as to whether it will be able to gather suffi­cient data to allow the pres­id­ent to exclude all undoc­u­mented people or even smal­ler subsets of the undoc­u­mented popu­la­tion, like people in immig­ra­tion deten­tion facil­it­ies.

Despite compel­ling evid­ence to the contrary, on Friday the Supreme Court accep­ted the Trump admin­is­tra­tion’s repres­ent­a­tions and over­ruled the New York court. In an unsigned opin­ion, the Court declared that the memor­andum was not yet suit­able for federal court review because the harm it will inflict on the chal­lengers is not yet clear. The Court reasoned that there is no injury yet because it is not yet known to what extent the pres­id­ent will be able to imple­ment his plan, how many people he will be able to exclude, and where among the states those people will be located.

“The Govern­ment’s even­tual action will reflect both legal and prac­tical constraints, making any predic­tion about future injury just that — a predic­tion,” the Court wrote. It consequently determ­ined that it would be more prudent to wait to see the poli­cy’s effect more concretely before ruling on its legal merits. The chal­lengers will now have to return to the trial courts if and when the pres­id­ent follows through.

Justice Stephen Breyer — joined by Justices Sonia Soto­mayor and Elena Kagan— force­fully dissen­ted, cutting to the core of the dispute: “Where, as here, the Govern­ment is acknow­ledging it is work­ing to achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Govern­ment spec­u­lates that it might not fully succeed.”

As Breyer further emphas­ized, the policy of exclud­ing undoc­u­mented people because they are undoc­u­mented would be illegal whether all undoc­u­mented people are excluded or only subsets. Echo­ing the lower court, he wrote that the ques­tion of the plan’s legal­ity “is not diffi­cult.” Quite simply, “the touch­stone for count­ing persons in the decen­nial census is their usual resid­ence, not their immig­ra­tion status” and immig­ra­tion status is not “some­how a proxy for the concept of resid­ency.”

The Court’s decision now gives Trump room to move forward with the policy, notwith­stand­ing its clear illeg­al­ity in any form it might take. And, in doing so, the Court has cast unne­ces­sary uncer­tainty over the integ­rity of the upcom­ing appor­tion­ment itself.

At its found­a­tion, the plan repres­ents Trump’s attempt to decide for himself who should count for appor­tion­ment, even though the Consti­tu­tion has already decided for him. His tools for this task: complex immig­ra­tion policy, data of dubi­ous merit, and hidden criteria. By allow­ing Trump to pursue his policy — at least for now — the Court’s order creates room for polit­ical chicanery where previ­ously there was none. The admin­is­tra­tion’s lack of clar­ity about how it plans to proceed only height­ens this threat. As several former Census Bureau direct­ors warned the Court in a friend-of-the-court brief, this situ­ation risks the legit­im­acy of the census by suggest­ing that the final counts reflect a polit­ical calcu­lus rather than unbiased stat­ist­ics.

Any polit­ical mach­in­a­tions using citizen­ship data will be racial­ized as well, with communit­ies of color bear­ing the brunt of any harm that results. In that sense, the Court’s decision also clears the way for the Trump admin­is­tra­tion’s ongo­ing attempts to manip­u­late the census toward racist ends, whether through a citizen­ship ques­tion or a sped-up census process, or, in this case, simply exclud­ing Black and brown people from the count once it’s all done.

The Court should and may well undo Trump’s policy if he ulti­mately executes on it. But the surer and safer path would have been to strike it down now rather than place the burden on affected communit­ies, Congress, and the courts to try damage control later.