The Trump administration asked the Supreme Court on Tuesday to quickly resolve another dispute related to the 2020 census and citizenship – this one involving whether people living in the country illegally must be included in the apportionment of congressional seats.
Last year, the court dealt a blow to the administration’s efforts to include a question about citizenship on the census. Chief Justice John Roberts joined the court’s four more liberal justices in ruling that the government’s justification for including the question was a pretext, and shortly after that ruling, the Department of Commerce, which is responsible for the census, abandoned its plan to add a citizenship question. The administration returned to the Supreme Court on Tuesday on another census issue. Acting U.S. Solicitor General Jeffrey Wall appealed a decision by a three-judge district court in New York that blocked the Department of Commerce from providing the president with information about the number of people who are in the United States illegally when the department furnishes him with a state-by-state breakdown of the population for use in the allocation of seats in the House of Representatives. Wall asked the justices to move quickly and schedule the case for oral argument in December – at which point the White House and Senate Republicans hope to have a successor to the late Justice Ruth Bader Ginsburg on the bench.
Under the federal laws governing the census, the secretary of commerce gives the president a state-by-state breakdown of the total population, to be used to allocate seats in the House of Representatives. On July 21, 2020, President Donald Trump issued a memorandum directing the secretary to include information in the breakdown that would allow him to exclude people who are in the country illegally from the apportionment calculation. Three days later, a group of state and local governments, led by New York, went to court to challenge the memorandum.
On Sept. 10, a three-judge district court barred the Trump administration from implementing the memorandum. The district court concluded that the memorandum violates federal law by requiring seats in the House of Representatives to be allocated based on something other than “the results of the census alone,” and the president lacks “discretion to exclude illegal aliens on the basis of their legal status.”
The Trump administration’s appeal to the Supreme Court on Tuesday argued that the challengers lack a legal right to sue. The district court’s ruling on the merits is also wrong, the administration added, because it is contrary to both federal law and the Supreme Court’s cases: The secretary, the administration argued, has the discretion to determine how to conduct the census and tally the total population, including by using administrative records from outside the census questionnaires. If the district court’s ruling is not “promptly corrected,” the administration stressed, “the decision will harm the ability of the Secretary of Commerce to provide a complete report by December 31, 2020.”
The administration asked the justices to fast-track the appeal. By statute, it explained, the secretary’s report has to go to the president by Dec. 31, and then the president must provide Congress by Jan. 10, 2021, with a statement indicating both the total population in each state and the number of representatives to which each state is entitled. “Absent some form of relief from the judgment,” the administration emphasized, “the Secretary and the President will be forced to make reports by the statutory deadline that do not reflect the President’s important policy decision concerning the apportionment.” Therefore, the administration urged the justices to set a deadline of Oct. 2 for the challengers’ response and to consider the appeal at either the Oct. 9 or Oct. 16 conference, with oral argument during the December argument session.
This post is also published on SCOTUSblog.