The Supreme Court heard oral argument on Monday in Trump v. New York, the challenge to the Trump administration’s plan to exclude people who are in the United States illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The stakes are high in the case: If the justices allow the administration to implement the plan before it leaves office in January, states with large immigrant populations could lose political power, while states with fewer immigrants could gain it. After over 90 minutes of debate, several justices seemed skeptical of the legality of President Donald Trump’s plan. But they spent relatively little time on that topic, focusing instead on whether the Supreme Court could or should weigh in now, and by the end it seemed very possible that they may not resolve the merits of the case immediately – if at all.
The Constitution requires a census every 10 years to determine the population of the United States, which is then used to allocate the seats in the House of Representatives. Federal law outlines the process by which that occurs. The secretary of commerce, to whom Congress has delegated the power to carry out the census, provides the president with a report containing “the tabulation of total population by States.” The president then sends a report to Congress that contains “the whole number of persons in each State,” along with “the number of Representatives to which each State would be entitled.”
Throughout U.S. history, the population numbers used to allocate seats in the House of Representatives have included everyone living in each state, regardless of their immigration status. In July 2020, however, Trump announced that the total population used to determine the number of seats for each state would not include people who are in the country illegally. In a memorandum to Secretary of Commerce Wilbur Ross, Trump asked for two numbers for each state: the total population as determined by the 2020 census; and the total population, subtracting – “to the extent practicable” – people who are living in the country without authorization. The second number would be used as the “base” to allocate seats in the House.
A group of state and local governments, led by New York, went to federal court to challenge the new policy, as did a group of nonprofits that work with immigrant communities. The challengers argued that the memorandum violated both the Constitution and federal law, and a special three-judge district court agreed. When the district court blocked the Trump administration from implementing the policy, the administration appealed to the Supreme Court, which agreed in October to expedite its review due to a looming Dec. 31 statutory deadline for Ross to send the census report to Trump.
Arguing on behalf of the administration, Acting Solicitor General Jeffrey Wall told the justices that there was still “substantial uncertainty” about the extent to which the Census Bureau would actually be able to identify how many people are in the United States without authorization. Therefore, he suggested, the court should avoid any substantive ruling right now and simply wipe the lower court’s decision from the books. That would allow the president, based on whatever data is available, to implement the policy as described in the July memorandum. Then, if the policy ultimately caused any states to lose House seats – an outcome that is not certain – the challengers could return to court to litigate the legality of the policy. But for now, Wall said, the challengers’ claim is too speculative.
Justice Samuel Alito told Wall that he found the posture of the case “quite frustrating,” noting that the eventual impact of excluding people who are not in the country legally from the populating base could range from significant to “much ado about very little.” There are an estimated 10.5 million people in the United States illegally, Alito observed, which could have a real effect on the allocation of seats in the House of Representatives. On the other hand, Alito continued, one group of noncitizens that the administration has been able to identify with some degree of certainty is the 60,000 people in Immigrations and Customs Enforcement detention – a number that is much less likely to change the allocation of seats. With only 31 days left in the year, Alito asked Wall, is there any realistic possibility that the Census Bureau will be able to exclude all 10.5 million people?
Wall agreed that it was unlikely that the Census Bureau would be able to identify all of the people in the United States without authorization in time to exclude them from the population base used for apportionment. He blamed the uncertainty on the fact that the challengers had brought their lawsuit before the seats had been allocated.
Other justices seemed sympathetic to Wall’s suggestion that the lawsuits had come too soon. Justice Brett Kavanaugh stressed that Wall was not contending that the justices should never consider the challengers’ claims; instead, Wall was simply urging the justices to put off deciding them now. Kavanaugh later observed that two different doctrines could weigh against deciding the case now: the standing doctrine, which requires an actual controversy involving a concrete injury, and the ripeness doctrine, which forbids lawsuits that are filed prematurely or are based on hypothetical future harm. The two doctrines are “identical” for purposes of this case, Kavanaugh said, because the president’s memorandum doesn’t require the challengers to do anything right now.
Justice Amy Coney Barrett echoed this point. She asked Barbara Underwood, New York’s solicitor general, whether it might be better for the justices to wait to see what categories of noncitizens – for example, people in ICE detention, people in the country illegally who have committed crimes or people who have received final orders for deportation – the president ultimately decides to exclude from the population base.
Other justices, however, were more skeptical about Wall’s assertion that it would be hard for the Census Bureau to identify and exclude large numbers of people in the United States without authorization. Justice Sonia Sotomayor reminded Wall that the president had asked for information about everyone who is in the country illegally, and she told Wall that the Census Bureau has been working to collect data from other agencies for over a year. “I don’t see how you can represent to us that you don’t think it’s going to be a large number,” Sotomayor said.
Justice Elena Kagan agreed. She asked Wall to explain the uncertainty, noting that the government already had the names of 700,000 noncitizens who had received relief from deportation under the program known as Deferred Action for Childhood Arrivals, as well as approximately 3.2 million people who are in deportation proceedings but are not in custody. “We can get easily to four to five million people for whom you have administrative records,” Kagan emphasized.
Underwood and Dale Ho, who argued on behalf of the nonprofit groups, told the justices that there is a substantial risk that the challengers will be injured by the memorandum’s direction to exclude people in the country illegally from the population base. The difference of a few thousand people in one state can mean the difference between gaining and losing a seat in the House of Representatives, Ho reminded the justices.
Underwood and Ho seemed to concede that a delay of a few weeks, to determine what categories of noncitizens the president might ultimately exclude from the population base, would not be “disruptive.” But they strongly resisted any suggestion that the court should dismiss the case and make them wait until after the apportionment of seats in the House has occurred to challenge the exclusion of people who are in the country without authorization. Ho told the justices that having to relitigate the case after apportionment would be “very disruptive” to the states’ redistricting process.
During the relatively brief time that the justices did spend on the question of whether the memorandum violates the Constitution or federal law, several justices seemed to agree with the challengers that it does. Barrett told Wall that much of the historical evidence “really cuts against your position,” and she later observed that someone who has been in the country for 20 years, even if here without authorization, would likely have a settled residence here.
For his part, Kavanaugh suggested to Underwood that the challengers had advanced “forceful” constitutional and statutory arguments that the president could not exclude everyone who is in the country illegally from the population base. But both Kavanaugh and Barrett broached the possibility that the president could issue a new memorandum that excluded only some categories of noncitizens from the population base. Ho pushed back, telling the justices that even the narrower categories – such as noncitizens in ICE detention centers – were still too broad, and he indicated that the challengers and the courts would likely have to litigate the legality of such a memorandum later.
In his rebuttal, Wall urged the justices to decide the case quickly, noting that the process of sending information to the president and then to Congress is “all going to happen on an extremely compressed timeline in January.” However, it wasn’t at all certain that there were five votes on the court to follow Wall’s proposed path.
Chief Justice John Roberts began the argument by asking Wall whether the Trump administration still needs a decision by Dec. 31, when Ross is supposed to send the census report to the president. That deadline, Roberts observed, was the reason why the Supreme Court had fast-tracked the Trump administration’s appeal.
Wall responded that the administration is “not on pace” to send the report to the president by Dec. 31 but hopes to deliver at least some data to the president in January. It’s not clear what effect, if any, that answer will have on the court’s timetable for issuing a decision in the case.
This post is also published on SCOTUSblog.