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Even Amy Coney Barrett appears skeptical of Trump’s latest attempt to rig the census

Trump wants to exclude undocumented immigrants from the census. The result is a messy Supreme Court case.

President Donald Trump speaks as Supreme Court Associate Justice Amy Coney Barrett listens during a swearing-in at the White House on October 26. 
Alex Wong/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

If the Supreme Court decides to actually decide Trump v. New York, a case asking if President Trump can exclude undocumented immigrants from the 2020 census count, Trump is very likely to lose.

Both Justices Brett Kavanaugh and Amy Coney Barrett appeared very skeptical of acting Solicitor General Jeff Wall’s attempt to defend Trump’s policy, which is unambiguously unconstitutional, during Monday’s oral arguments. Add in the three liberal justices, and that’s a majority of the Court that may be opposed to Trump’s policy. Only Justice Samuel Alito offered much of a defense of it, so it’s possible a ruling will be more lopsided than a 5-4 ruling.

But the case is procedurally very messy. Several justices expressed doubts that the Court has jurisdiction to hear it now, though they could potentially take it up again after the census is finalized.

It’s also unclear whether the Court should rule on this case on the expedited schedule originally proposed by Trump’s Justice Department. The Justice Department had asked for the case to be decided before a December 31 statutory deadline to transmit the results of the 2020 census to Trump. But Wall seemed to concede early in Monday’s arguments that the Commerce Department is “not currently on pace” for that milestone, so Trump may not be able to meet a January 10 deadline to inform Congress of the new census’s impact on representation in the US House of Representatives.

President-elect Joe Biden, meanwhile, becomes president at noon on January 20. And once he becomes president, he can render this case moot by rescinding Trump’s policy excluding undocumented immigrants from the census, assuming that the census has not been finalized by that point.

The Trump administration, in other words, appears to be engaged in a disorganized race against the clock to implement an unconstitutional policy before Trump’s term expires. And the justices appear uncertain about whether to end it now, or whether to let it play out and potentially invalidate Trump’s policy later.

Trump’s plan to exclude undocumented immigrants from the census is unconstitutional

The New York case turns on a memorandum Trump issued in July, which provides that “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.” Thus, if Trump gets his way, undocumented immigrants will not be counted when House representation is doled out to each of the 50 states following the census.

About 10.6 million undocumented immigrants live in the United States, and nearly 20 percent live in California. So the nation’s largest blue state could lose as many as three House seats if Trump succeeds in his plans to cut these immigrants out of the apportionment count. (The Republican-leaning state of Texas could also be hit hard, but Texas’s Republican legislature is likely to draw gerrymandered maps that would impose the cost of any lost House seats on Democrats. California, by contrast, uses a bipartisan redistricting commission to draw legislative lines.)

Trump’s memo violates the unambiguous text of the Constitution. Under the 14th Amendment, “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Undocumented immigrants are “persons.”

To get around this constitutional requirement, Trump claims that the 14th Amendment should not be read literally. “Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census,” Trump says in his memo, “that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.”

On this narrow point, Trump is correct. There are some foreign nationals, such as tourists and foreign diplomats, who generally are not counted by the census, even if they are physically present when the census is being taken. “The term ‘persons in each State,’” Trump’s memo notes, “has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

Yet, while Trump is largely correct that only “inhabitants” of a state are counted for purposes of the census, Trump then claims a broad power to determine who counts as an inhabitant and who does not — and then he wields this assumed power to insist that undocumented immigrants are not inhabitants of the state where they reside.

But this claim cannot be squared with the meaning of the word “inhabitant.” As the lower court that ruled against Trump in New York held, “it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded” from the census by claiming that they are not “inhabitants” of a state. “To the contrary,” the court explained, while quoting from Merriam-Webster’s dictionary, “the ordinary definition of the term ‘inhabitant’ is ‘one that occupies a particular place regularly, routinely, or for a period of time.’”

Many undocumented immigrants reside in a state for “many years or even decades,” the court continued. Such individuals are clearly “inhabitants” of the state where they live, even if they are not lawfully present.

Trump’s newest appointee to the Court, Barrett, offered a forceful rebuttal to the attempt to defend Trump’s policy. “A lot of the historical evidence and longstanding practice really cuts against your position,” Barrett told Wall. She added that there is evidence that “in the founding era, an ‘inhabitant’ was a dweller, who lives and resides in a place.”

Thus, an immigrant who has resided in a state for many months or years — or even one who has only lived there briefly — would count as an “inhabitant.”

Kavanaugh, another Trump appointee, also said that he believes there are “forceful constitutional and statutory arguments” against Trump’s position. So it is very likely that a majority of the Court will vote to reject Trump’s policy — if, that is, the Court decides this case at all.

Trump’s lawyers defended a very different policy than the one laid out in Trump’s memo

The policy laid out in Trump’s July memo is categorical. The memo states that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” So, the memo suggests that any undocumented immigrant should be excluded from the census for apportionment purposes.

But acting Solicitor General Wall spent time in oral arguments claiming that the administration isn’t sure how many undocumented immigrants it will be able to identify, or whether Trump will try to exclude more than a “subset” of the estimated 10-11 million undocumented immigrants in the country. This subset, which might only include immigrants who are currently being detained with an eye towards removal, could be much smaller than the total number of undocumented immigrants in the country.

The reason why the question of how many immigrants will be excluded matters is because of a doctrine known as “standing.” Broadly speaking, a plaintiff may not challenge a federal policy unless they can show that there is a “substantial risk” that they will be injured by that policy.

As a general rule, a state has standing to challenge a census-related policy if they are likely to lose House seats under that policy. But it is far more likely that one of the plaintiff states will lose representation if millions of undocumented immigrants are excluded from the census than if only maybe tens of thousands of immigrants are excluded.

For this reason, several justices suggested that maybe the Court should wait to decide this case until after we know how many immigrants Trump will exclude.

If the Court goes down that path, it’s unclear what happens next. As noted above, Trump might not manage to send the final House appointment results to Congress before he leaves office. So the justices could be able to sit on this case until January 20, let President Biden rescind Trump’s memo, and then declare the case moot.

Alternatively, the Court could dismiss the case, let Trump do whatever he is going to do, and then the plaintiff states could file a new lawsuit as soon as Trump sends his apportionment results to Congress. Under this alternative outcome, Trump would win a temporary victory, but Trump’s policy would still most likely fall victim to future litigation.

Kavanaugh and Barrett also appeared to entertain a third possibility. The Court could strike down the categorical exclusion of undocumented immigrants laid out in Trump’s July memorandum, but they could also permit Trump to issue a new memorandum that might exclude certain subcategories of undocumented immigrants (such as people currently in immigration detention). The plaintiff states could then file a new lawsuit challenging the legality of that new memorandum.

In any event, it appears unlikely that Trump’s original policy will stand. There appear to be at least five Supreme Court members — and potentially more than five — who think that Trump does not have the power to categorically exclude undocumented immigrants from the apportionment count.

The open question is whether the Court will decide this case quickly, or whether they will string this case out, potentially raising a cloud of uncertainty over the apportionment process for months or more.

Such a cloud could have significant costs, as it will cut into the time that states need to use to draw new congressional maps using the new census data. But, at the very least, Trump’s unconstitutional policy looks likely to fall — eventually.