The Supreme Court dismissed a lawsuit on December 18, 2020 challenging the Trump administration's plan to exclude undocumented immigrants from the 2020 United States Census.  The case, Trump v. New York, No. 20-366, holds great political consequence. As we discussed in this post from last month, the U.S. Constitution mandates a count of the country's population every ten years. The count, which is based not on citizenship but on the “whole number of persons in each state,” is used to apportion political power and federal funds.  According to the Pew Research Center, a majority of the 10.5 undocumented immigrants living in the United States live in six states, all of which lean toward the Democratic Party.  In 2019, the Trump administration attempted to break precedent by adding a citizenship question to census forms.  Although this was blocked by the Supreme Court, President Trump issued a memorandum in July of that same year which said that “aliens who are not in a lawful immigratory status” would be excluded from the apportionment base because “Including these illegal aliens in the population of the state for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.” The legality of this memorandum is the contention of Trump v. New York, No. 20-366.  Although three lower courts have ruled it to be a violation of federal court, the Supreme Court says that a ruling on the merits of the case would be “premature.”

Why would a ruling be considered premature?

As the New York Times reports, the coronavirus pandemic has cast a toll on census data collection: in the spring, the administration asked Congress to extend the legal deadline for delivering reapportionment totals from the end of the year to April 2021.  In July, however, the president “reversed course” and ordered that the original December 31 deadline be met, which “forced the Census Bureau to complete five months of data processing in about two months.”

The December 18 Supreme Court proceedings—which took place with the December 31 deadline in mind—resulted in a 6-3 decision. The unsigned opinion states that “this case is riddled with contingencies and speculation that impede judicial review” and that “Everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status.”  According to CNN Politics, the court said that the plaintiffs did not have the legal injury necessary "because the government has not yet announced which individuals it seeks to exclude from the count.”

Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, the three liberal members of the court, said that they would have ruled the exclusion to be unlawful.  In the dissent, Justice Breyer cited the July memorandum, remarking that the title alone is indicative of malign intent: “The harm is clear on the face of the policy... The title of the presidential memorandum reads: ‘Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.'” He also stated that the “decades of historical practice and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status” and that “this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” 

The Practical Effect of this Outcome

The Supreme Court's decision to put off a ruling is, as the New York Times describes it, an “interim victory” for the Trump administration.  For the plaintiffs and the immigrant community as a whole, it is as ACLU lawyer David Ho puts it: a minor setback. “This ruling,” Ho said in a statement quoted by CBS News, “does not authorize President Trump's goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives. The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress.”

And yet, the dismissal of Trump v. New York, No. 20-366 technically allows the administration to carry on its plan. As indicated earlier, however, the Census Bureau has faced delays in its data collection.  The practical effect of the December 18 outcome may be limited as a result of this; officials have said that they may be unable to produce numbers on undocumented immigrants prior to January 20, when Trump leaves office.  If the Census Bureau is unable to identify undocumented immigrants, it will therefore be unable to remove them from the apportionment calculations. There also remains the possibility that census figures are not fully determined until after Inauguration Day.  Should this occur, President-elect Joe Biden would have the power to reverse the memorandum and restore precedent.  The census is not a register of citizens but one of all the people in the United States—the question of whether undocumented immigrants “count” should never have been asked in the first place.