Supreme Court passes on Census case

CNA Staff, Dec 18, 2020 / 03:00 pm (CNA).- The Supreme Court on Friday chose not to rule on a major Census case, temporarily allowing the Trump administration to continue with the process of enumeration.

The case of Trump v. New York involves the administration’s lawful ability to exclude undocumented immigrants from the overall population of states for the apportioning of seats in Congress based on states’ population. On Friday, the court said it was not yet ready for consideration.

The number of a state’s representatives in the House is determined by its population, which itself is determined by the decennial Census. According to the Fourteenth Amendment, representatives are apportioned “counting the whole number of persons in each State.”

In July, President Trump had issued a memorandum instructing that undocumented immigrants be excluded from the apportionment base; he ordered the Secretary of Commerce to provide him the information necessary to do so at his discretion and “to the extent practicable,” in addition to the information contained in the 2020 Census.

Trump, in his memo, stated that he “will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government.”

The U.S. bishops’ conference opposed the policy, stating that the exclusion of undocumented immigrants from the apportion process “makes people feel invisible and not valued as human beings.”

States, local governments, and organizations sued over the memo, claiming that the action was unconstitutional.

A three-judge panel of a district court found that plaintiffs had a legitimate case, as excluding undocumented immigrants from apportionment could affect the Census count and that according to the law, apportionment is based on the “whole number of persons in each State.”

The Trump administration argued before the Supreme Court on Nov. 30 that it was still determining the number of undocumented immigrants in the U.S., and which ones would be excluded from the apportionment count. Thus, the administration said that parties did not yet have an injury to bring before the court, as the count and the apportionment process were not finished.

On Friday, a Supreme Court majority determined that it could not yet rule on the case.

“As the plaintiffs concede, any chilling effect from the memorandum dissipated upon the conclusion of the census response period,” the unsigned court majority opinion read.

Furthermore, those parties suing the administration are claiming an injury based on a threat, the court said, and not on the impact of a policy that has already been implemented.

Their case is “premised on the threatened impact of an unlawful apportionment on congressional representation and federal funding. As the case comes to us, however, we conclude that it does not—at this time—present a dispute ‘appropriately resolved through the judicial process’,” the opinion stated.

Justice Stephen Breyer issued a dissent, joined by Justices Sonia Sotomayor and Elena Kagan.

He argued that the apportionment of representatives must be based on the overall population of a state, regardless of the legal status of its residents; furthermore, the administration has not denied it would implement this policy of exclusion “to the extent it is able to do so,” Breyer said.

“Under a straightforward application of our precedents, the plaintiffs have standing to sue. The question is ripe for resolution. And, in my view, the plaintiffs should also prevail on the merits,” he said.

“The Government’s effort to remove them [undocumented immigrants] from the apportionment base is unlawful, and I believe this Court should say so,” he said.

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