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Supreme Court to Hear Arguments on Trump’s Attempt to Exclude Undocumented Immigrants from 2020 Census

Posted by Matthew Green | Dec 03, 2020 | 0 Comments

Even as he approaches his final days in office, President Trump continues to target undocumented immigrants.  On November 30, the Supreme Court will hear arguments on the president's attempt to exclude this group of people from the official 2020 Census. The outcome of Trump v. New York, No. 20-366 could allow Trump to make one of his most politically significant final acts as president. 

Why would such an exclusion be politically significant?

 The United States Constitution requires “actual enumeration” to occur every ten years in order to determine changes in population and how to distribute political power and federal funds based on “the whole number of persons in each state.” According to ABC News, a ruling in favor of Trump “would break from more than a century of precedent in determining apportionment of the 435 congressional districts across all 50 states.” It would, in fact, break more than two centuries of precedent: the first decennial census took place following the American Revolution in 1790. 

 A Pew Research Center analysis of U.S. Census Bureau data found that there are an estimated 10.5 million immigrants who live in the country without legal status.  A majority of those immigrants live in six states: California, Texas, Florida, New York, New Jersey, and Illinois. To exclude these millions of people from the 2020 Census would result in complete reallocation of Congressional representation and federal funding.  California, Florida, and Texas, for example, would each receive one fewer seat in the U.S. House while Alabama, Minnesota, and Ohio would each gain a seat.       

USA Today quotes Dale Ho, director of the voting rights project at the American Civil Liberties Union: “This is a way to try to tilt the electoral map for the next decade on [Trump's] way out the door.” It is for this very reason that the exclusion of undocumented immigrants from the 2020 census count would be politically significant and far-reaching.  

Is this the first attempt to exclude immigrants from the 2020 Census?

This is not the first time Trump has attempted to exclude immigrants from the 2020 Census. In 2019, the Supreme Court blocked his efforts to add a question on citizenship on census forms.  In July of that year, the president issued a memorandum that read “For the purpose of the reapportionment of representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Wilbur Ross, the secretary of commerce, was ordered to provide Trump with two sets of census figures—one including undocumented immigrants, one not. 

This was immediately challenged by a coalition of 20 states, 10 cities, five counties, and various immigrant advocacy groups. In their responding legal briefs, the parties point out that undocumented immigrants who reside within the U.S. have always been included throughout the 200-plus years of Census Bureau counting.  Up until this upcoming Supreme Court hearing, Trump v. New York, No.20-366 has been heard by three lower courts. All have ruled similarly: Trump's policy is a violation of federal court.

What is to come?

The New York Times distils the core question of this case: who counts for purposes of congressional reapportionment?  The answer to this question—which has until this point been largely untested—will come from the Supreme Court ruling.

The decision will not come soon enough.  Commerce Secretary Wilbur Ross is to report the census results to the president on December 31. Trump then has until January 10—ten days before Inauguration Day—to advise Congress on how many representatives each state should be allocated.  It is expected that the Supreme Court will hand down its decision before that date. 

Of course, the outcome of this dispute is not just dependent on the ruling; it is reliant on the census results themselves. Census Bureau officials have warned that the required data cannot be produced until after Trump is to leave office.  “Even if they do,” writes the New York Times, “it is not clear that congressional officials would accept what they may view as flawed calculations, and President-elect Joseph R. Biden Jr. may try to reverse course once he takes office.”  In other words, litigation of this issue may very well extend into the new administration.

About the Author

Matthew Green

Managing Attorney. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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Green Evans-Schroeder is focused on the aggressive defense of immigrants.

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