By Matt Hadro
Washington D.C., Nov 30, 2020 / 13:00 pm
The Supreme Court heard oral arguments Monday on whether the Trump administration can exclude undocumented immigrants when apportioning congressional representatives based on a state's population.
The case of Trump v. New York is based on a July memorandum of President Trump to the Commerce Secretary, noting that undocumented immigrants were to be excluded from the apportionment of representatives to states, based on the 2020 Census.
According to the Constitution, the number of congressional representatives from a particular state depends upon the state's population, which is tabulated by the Census. According to Article I, Sec. 2, The population is "the whole Number of free Persons" and "three fifths of all other Persons," a reference to the practice of slavery in many states at the time. The Fourteenth Amendment, ratified in 1868, states that "representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State."
Trump, however, has stated that his administration "will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government."
The U.S. Bishops' conference has repeatedly opposed the policy.
In a statement on Monday, the chair of the U.S. bishops' migration committee said that excluding undocumented immigrants from the count of total persons in a state "is counter to the Constitution and makes people feel invisible and not valued as human beings."
"The Church's teaching is clear: human dignity is most sacred, regardless of legal status," stated Bishop Mario Dorsonville, auxiliary bishop of Washington, D.C. "For that reason, we once again affirm the need to count all persons in the census, as well as in the apportionment of congressional representatives."
The state of New York challenged Trump's order in court, arguing that excluding people from congressional representation based on their citizenship status was unconstitutional and unprecedented.
On Monday, acting U.S. Solicitor General Jeffrey Wall argued that the administration is still determining the number of undocumented immigrants, and which ones would be excluded from the apportionment count.
The court should wait and not rule against the decision, he said, as the state of New York has not suffered an injury but is only bringing up "possible future injuries."
Justices asked Wall if the administration was planning on excluding all undocumented immigrants from the apportionment count, or only select classes such as those being detained in ICE facilities or given final orders of deportation by a judge.
With only a month left in the year, it would be a "monumental task" to count and exclude 10.5 million immigrants from apportionment, Justice Samuel Alito said. Wall admitted it would be "very unlikely" to identify every single undocumented immigrant residing in the U.S.
Justice Sonia Sotomayor said that, according to her understanding of Trump's memo, the intent was to exclude all undocumented immigrants from the apportionment count, and that even if the administration included only certain categories of immigrants to exclude, those categories encompass a "substantially large" amount of people.
Justice Elena Kagan questioned why the administration needed the court to wait before ruling, asking Wall if the administration was working to count certain categories of immigrants, such as those who had final orders of removal, or were recipients of the DACA program.
"We can easily get to four to five million [immigrants] you have records on," she told Wall. "You're 30 days out, so it seems like you can know whether or not you can do matching."
Justice Amy Coney Barrett also questioned Wall, citing historical examples to argue that, at the time the Constitution was adopted, an inhabitant of the U.S. was considered a "dweller." Undocumented immigrants, she said, have never been excluded from the Census as a category.
(Story continues below)
If an undocumented immigrant has resided in the U.S. for 20 years, she asked Wall, why they would not be considered a resident.
On the merits of the case, Wall argued, undocumented immigrants do not meet the test of being considered lawful residents.
New York's solicitor general, Barbara Underwood, on Monday called the administration's argument "flatly inconsistent." The apportionment of representatives to a particular state has always included the number of people living there, including those ineligible to vote, she said.
People living in a state are not invisible, she said, despite their undocumented status. Their "presence requires attention from the government, and the need for representatives to give that attention," she said.
Underwood told Chief Justice John Roberts that the state wanted the court to declare the policy in violation of the law and halt the transmission of information from the Commerce Department to President Trump about undocumented immigrants, as part of the Census report.
However, she admitted that a separate communication from Commerce to the President on undocumented immigrants would not violate an injunction from the court.
Underwood also answered Justice Barrett that, if President Trump ultimately decided only to remove some undocumented immigrants from the apportionment count, that would require further litigation from states.
Trump's memo came after the Supreme Court in 2019 blocked an effort by his administration to include a citizenship question in the 2020 Census. After that ruling, the administration then demanded records from states, few of which complied with the request.
