WASHINGTON — The Supreme Court announced Friday that it would hear a case on whether the Trump administration can exclude immigrants living in the U.S. illegally from the calculations it will use in apportioning congressional seats. The court put the case on a fast track, saying it will hear arguments Nov. 30.
Judge Amy Coney Barrett, President Donald Trump’s Supreme Court pick, will most likely be on the court by then.
The announcement followed an order by the court on Tuesday allowing the administration to cut short the 2020 census count. The administration had said it needed to do so to meet a deadline for submitting its tabulations by the end of the year, allowing Trump to control the process even if he loses the November election.
The case the court agreed to hear Friday concerns whether those tabulations should include immigrants without legal status. If the court rules for the administration, it would upend a consensus that the census must count all residents, whatever their immigration status, and would generally shift both political power and federal money from Democratic states to Republican ones.
The Constitution requires congressional districts to be apportioned “counting the whole number of persons in each state,” using information from the census. To this end, a federal law requires the president to send Congress a statement setting out the number of representatives to which each state is entitled after each decennial census.
In July, Trump issued a memorandum taking a new approach. “For the purpose of the reapportionment of representatives following the 2020 census,” the memorandum said, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.”
“Current estimates suggest that one state is home to more than 2.2 million illegal aliens, constituting more than 6% of the state’s entire population,” the memorandum said, apparently referring to California. “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.”
Trump ordered Wilbur Ross, the secretary of commerce, to provide him with two sets of numbers, one including unauthorized immigrants and the other not. It was not clear how Ross would derive the second set of numbers, as the Supreme Court last year rejected his efforts to add a question on citizenship to the census.
The new policy was challenged by two sets of plaintiffs, one a group of state and local governments and the U.S. Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations.
A three-judge panel of the U.S. District Court in Manhattan ruled that the new policy violated federal law. In an unsigned opinion, the panel said the question was “not particularly close or complicated.”
“The secretary is required to report a single set of figures to the president — namely, ‘the tabulation of total population by states’ under the ‘decennial census’ — and the president is then required to use those same figures to determine apportionment using the method of equal proportions,” the panel wrote, quoting the relevant statutes.
Two of the judges on the panel, Richard C. Wesley and Peter W. Hall, were appointed by President George W. Bush. The third, Jesse M. Furman, was named by President Barack Obama.
Much of the panel’s opinion concerned whether the plaintiffs had suffered the sort of injury that gave them standing to sue. It concluded that the new policy made it less likely that unauthorized immigrants and others would participate in the census, harming its accuracy. Census data is used for many purposes, including how hundreds of billions of dollars in federal spending are distributed.
The case, Trump v. New York, No. 20-366, was complicated by the order Tuesday allowing the administration to end the census count, which may undercut the three-judge panel’s reasons for finding standing.
In asking the Supreme Court to step in, the Trump administration, represented by the acting solicitor general, Jeffrey B. Wall, defended the new policy, saying that the term “persons in each state” can be understood to require “a sovereign’s permission to remain within the jurisdiction.”
In response, Barbara D. Underwood, New York’s solicitor general, representing state and local governments, said the administration was asking the court to endorse a stunning departure from the nation’s traditions. “Since the Founding,” she wrote, “the population base used to apportion seats in the House of Representatives has never excluded any resident based on immigration status.”
In a separate response, groups represented by the American Civil Liberties Union said the administration’s new policy violated the federal statute and the Constitution.
“The president does not have discretion to pencil out persons included in the actual enumeration to create a separate apportionment base of his own liking,” the brief said.
On Friday, after the court acted, Dale Ho, a lawyer with the ACLU, said the administration’s plan was unlawful
“President Trump has repeatedly tried — and failed — to weaponize the census for his attacks on immigrant communities,” Ho said in a statement. “The Supreme Court rejected his attempt last year and should do so again. The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress.”