A divided U.S. Supreme Court threw out a challenge to President Donald Trump’s bid to exclude undocumented immigrants from the census count, saying opponents must wait to see whether his effort succeeds and affects the allocation of congressional seats or federal dollars.
The 6-3 ruling Friday eliminates one obstacle to the administration’s push to finalize the numbers and submit a report to Congress before President-elect Joe Biden takes office Jan. 20. Trump is trying to change more than two centuries of practice in a nation that has always counted non-citizen residents, even those in the U.S. illegally.
“At present, this case is riddled with contingencies and speculation that impede judicial review,” the court said in an unsigned opinion on Friday.
The ruling doesn’t necessarily mean Trump will succeed in his drive. Census Bureau officials have told the Commerce Department they can’t produce the state-by-state population totals by the time Trump leaves office, according to reports in the New York Times.
During arguments on Nov. 30, acting U.S. Solicitor General Jeffrey Wall said the administration was now working to identify categories of people, such as those in federal detention, rather than trying to omit all of the estimated 10.5 million undocumented immigrants in the country.
Even if Trump sends Congress the numbers, lawmakers could still reject the tally, and Biden may be able to submit a revised report after he becomes president.
Trump says he is trying to discourage illegal immigration and stop rewarding states that welcome it. Critics say he is attempting to manipulate the numbers at the expense of Democratic-leaning areas with high immigrant populations.
“If this policy is ever actually implemented, we’ll be right back in court challenging it,” said Dale Ho, the American Civil Liberties Union lawyer who argued the case against the Trump plan.
The ruling rested on the same broad legal ground — the constitutional limits on the power of the federal judiciary — that the court used last week to reject Texas’s bid to overturn Biden’s election victory.
The majority on Friday questioned whether the challengers had “standing” to keep pressing the case now that the census count itself is complete. The challengers, a group that also includes New York, had originally said the policy would discourage undocumented immigrants from participating.
The high court also said the Trump policy might not be ripe for challenge because it “may not provide feasible to implement in any manner whatsoever.”
“Any prediction how the executive branch might eventually implement this general statement of policy is no more than conjecture at this time,” the majority said. The court said it was expressing “no view” on the merits of the challenge itself.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, saying the majority’s approach risks “needless and costly” delays in the apportionment of congressional seats.
“Where, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed,” Breyer wrote for the three liberal justices.
Trump laid out the policy in a July 21 memorandum that told Commerce Secretary Wilbur Ross to send the president a tally that excludes undocumented immigrants, along with a separate set of numbers showing the total population. The Commerce Department houses the Census Bureau.
A three-judge panel said the plan runs afoul of the U.S. Census Act, which requires the Commerce secretary to show the “tabulation of total population by states.” Opponents said that law precludes the secretary from including numbers on undocumented immigrants as part of that report.
In a separate case in California, a court said Trump was violating a constitutional provision that requires congressional seats to be apportioned according to the “whole number of persons in each state.”
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