The Supreme Court announced on Friday afternoon that it would expedite an appeal by the Trump administration in a dispute over the administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown of the population for use in the allocation of seats in the House of Representatives. The justices will hear oral argument in Trump v. New York on Nov. 30, just over one month before a report by the secretary of commerce containing that information is required to go to the president. Barring some unforeseen development, the court is likely to be operating with all nine members again by then, with Judge Amy Coney Barrett expected to be confirmed to succeed Justice Ruth Bader Ginsburg in the next few weeks.
Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.
A three-judge district court issued an order on Sept. 10 that blocked the Trump administration from implementing the memorandum. The district court agreed with the challengers that, by requiring seats in the House to be allocated based on something other than “the results of the census alone,” the memorandum violates federal law. Moreover, the court added, the president does not have the “discretion to exclude illegal aliens on the basis of their legal status, without regard for their residency.”
The lawsuit falls into the narrow group of cases decided by a three-judge district court, which allowed the Trump administration to appeal directly to the Supreme Court. In a filing in late September, the Trump administration argued both that the challengers do not have a legal right to sue, known as standing, and that the district court’s decision is wrong. Federal law and the Supreme Court’s cases, the administration stressed, gives the secretary latitude to decide how to carry out the census and tally the population. Emphasizing that the secretary is required by law to provide a report to the president by Dec. 31, and that the president must in turn send a report containing the total population of each state and the number of representatives to which each state is entitled to Congress by Jan. 10, 2021, the administration also asked the court to expedite the appeal.
The challengers urged the court to affirm the district court’s decision, telling the justices that the July memorandum is harming the governments “by deterring immigrant households’ responses to the ongoing census count.” And even when the census count has finished, they continued, they will still be harmed by the apportionment: Some states could lose seats in the House and electors in the Electoral College, for example. On the merits, the challengers continued, both federal law and the Constitution “plainly require the inclusion of all persons who usually reside here” in the apportionment calculation.
In a brief order on Friday afternoon, the justices announced that they will hear oral argument in the administration’s appeal on Nov. 30 – the first day of the court’s December argument session. The order was the court’s second one this week involving the census: On Tuesday, the justices granted a request by the government to immediately stop the 2020 census count, blocking a lower-court order that would have required the government to continue counting until the end of October.
This article is also published on SCOTUSblog.