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Supreme Court Punts In Census Case, Giving Trump A Chance To Alter Numbers

Protesters carrying signs about the census gather outside the U.S. Supreme Court in 2019. Immigrant rights advocates have vowed to continue fighting President Trump's proposal.
Aurora Samperio
NurPhoto via Getty Images
Protesters carrying signs about the census gather outside the U.S. Supreme Court in 2019. Immigrant rights advocates have vowed to continue fighting President Trump's proposal.

The U.S. Supreme Court dodged a ruling on whether President Trump can exclude undocumented immigrants from a key census count. The opinion said the case was "riddled with contingencies and speculation that impede judicial review."

"At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this" case is "premature," the justices wrote.

The decision leaves open the possibility for Trump to try to remove some undocumented immigrants from a key census count, but immigrant rights advocates warned Friday that they would sue.

"If the Administration actually tries to implement this policy, we'll sue. Again. And we'll win," Dale Ho, director of the American Civil Liberties Union's voting rights project, said on Twitter.

The Constitution requires that there be a count of the "whole number of persons" in the country every 10 years and that congressional seats be allocated based on that population count in each state. The Electoral College votes are identically apportioned.

Census numbers used to determine each state's share of seats in the House of Representatives and votes in the Electoral College have always included both citizens and noncitizens, regardless of their immigration status.

But in July, Trump issued a memorandum ordering the Census Bureau to send him two sets of numbers. One set was to be the whole number of persons in each state. The second set would allow the number of undocumented immigrants in each state to be subtracted from those numbers for purposes for determining how many seats each state gets in the House of Representatives.

A total of 23 states challenged Trump's directive in court, along with immigrant rights advocates and other groups, and three lower courts — including one in New York that released the ruling reviewed by the Supreme Court — issued orders blocking the administration from carrying out Trump's memo. They contended the Trump order violated the Constitution, census statutes, or both.

The Trump administration argued that under federal law, the president has "virtually unfettered discretion" as to what data is used in the decennial census. But the lower courts rejected that claim, with both Republican- and Democratic-appointed judges ruling against him.

Trump appealed to the Supreme Court, but even red states with large immigrant populations did not support his position, among them Texas, Florida and Arizona.

Among the arguments made by the administration was the assertion that undocumented immigrants are not inhabitants as the Framers would have understood the term when writing the Constitution and deciding how to divide up federal power among the states.

Countering that argument, states and immigrant groups noted that about two-thirds of unauthorized immigrants have lived in this country for at least 10 years, with the median being 15 years.

The litigation added difficulty for an already-burdened Census Bureau, which geared up for the nationwide rollout of the census count just as the COVID-19 pandemic began hitting with full force in April. And the Census Bureau indicated this fall that it might not be able to meet the Dec. 31 deadline for reporting its figures.

Nor has the bureau been able to ascertain what portion of those people living in the United States are not here legally.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.
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