By Matthew Vadum
The Supreme Court ruled that the federal government may remove illegal aliens from the 2020 Census count, which eliminates that population from the process of allocating congressional seats and Electoral College votes that officially determine the presidency.
The 6-3 decision in Trump v. New York issued Dec. 18 is a victory for the Trump administration.
Placed on a judicial fast track because various census-related deadlines are nearing, oral argument took place telephonically before the nine justices on Nov. 30.
The Trump administration wanted illegal aliens removed from the decennial census count to prevent them from having an impact on the apportionment of political power among the states.
States and local governments, including so-called sanctuary jurisdictions, which refuse to cooperate with federal immigration officials, sued to prevent the administration’s plan from moving forward. They argued that President Donald Trump, a Republican, was attempting to interfere with the count and prevent Democratic-leaning areas with large illegal-alien populations from gaining congressional seats.
But the high court found that their challenge was premature because they could not demonstrate any so-called concrete injury they might suffer. The ruling apparently leaves open the possibility of further challenges in the future and acknowledges the Trump administration may have difficulty implementing its policy.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the court stated in the unsigned opinion.
“The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that” information should be gathered “to the extent practicable” and that aliens should be excluded “to the extent feasible,” quoting federal regulations.
“Any prediction how the Executive Branch might eventually implement this general statement of policy is “no more than conjecture” at this time,” the court stated citing Los Angeles v. Lyons (1983).
“To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here. Pre-apportionment litigation always ‘presents a moving target’ because” the administration “may make (and the President may direct) changes to the census up until the President transmits his statement to the House.”
The Supreme Court opinion allows the Trump administration to try to implement its counting policy for now even though processing of 2020 Census data is expected to wrap up in coming weeks. Existing law requires the president to file a mandatory reapportionment report with Congress next month, which could lead to reduced federal funding in states with large illegal-alien populations.
Pew Research Center reported in July based on its own analysis that removing illegal aliens from the count would cause California, Florida, and Texas to receive one less congressional seat than they would have been allotted based on population change alone.
Alabama, Minnesota, and Ohio would each keep a seat they would have lost if apportionment were based solely on total population change. Alabama sued in 2018 over apportionment issues, as The Epoch Times previously reported.
Dan Stein, president of the Federation for American Immigration Reform (FAIR), described the new court decision in political terms as “a form of truce.”
“It seems like a punt on the core issues, and more a delay pending the outcome of the administration’s efforts to try to exclude illegal aliens. If the Census is unable to do so, the case will be moot,” Stein told The Epoch Times.
“But the justices are saying that until that actually is accomplished, and the plaintiffs can show that they still actually lost representation by excluding illegal aliens from the count, there is no evidence of concrete injury. So it is a form of truce. Had Trump been elected, that would not have been the end of the matter, and the key constitutional questions remain unanswered.”
Justice Stephen Breyer filed a dissenting opinion, which was joined by Justices Sonia Sotomayor and Elena Kagan.
“The Government does not deny that, if carried out, the policy will harm the plaintiffs. Nor does it deny that it will implement that policy imminently (to the extent it is able to do so). Under a straightforward application of our precedents, the plaintiffs have standing to sue. The question is ripe for resolution. And, in my view, the plaintiffs should also prevail on the merits.
“The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. The Government’s effort to remove them from the apportionment base is unlawful, and I believe this Court should say so.”
The reaction of the American Civil Liberties Union, which was a party to the lawsuit, was dismissive.
“If the Administration actually tries to implement this policy, we’ll sue,” said Dale Ho of the ACLU’s voting rights project. “Again. And we’ll win,” he wrote on Twitter.
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