Skepticism emerged Monday as the Supreme Court heard oral arguments on a case that will determine whether President Trump has the authority to exclude undocumented immigrants from population figures used to determine House apportionment and federal funding to states.
The court appeared wary of approving any broad exclusion of undocumented immigrants but wasn’t ready to throw its weight behind the plaintiffs either. Several justices questioned whether New York, the ACLU, and other groups that opposed the plan had sufficient standing to bring the case before the court before it was clear how exactly states would be affected — if at all.
“Career experts at the Census Bureau confirmed with me that they still don’t know even roughly how many illegal aliens they will be able to identify, let alone how their number and geographic concentration may affect apportionment,” said Jeffrey Wall, the acting U.S. solicitor general.
The 14th Amendment states that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” Generally, that has been understood to include anyone who lives in a state, regardless of legal status.
“If an undocumented person has been in the country for, say, 20 years, even if illegally, why would such a person not have a settled residence?” asked Amy Coney Barrett, the newest justice.
The effect of the president’s memorandum will be determined by categories of undocumented immigrants the Census Bureau can distinguish and exclude. If the bureau can only exclude those who are in Immigration and Customs Enforcement detention camps, for example, apportionment and fund allocation may not be affected at all.
“If I just take the numbers from the district court and D.C.’s opinion last week, they say the plaintiffs, in that case, were claiming there were 10.5 million people in this country who would be counted as being here illegally, but if you look at the small number of those who are held in detention facilities, it is something like 60,000,” Justice Samuel Alito said. “The first number could easily change the apportionment of representatives. The second one is much more doubtful that it would change the apportionment of the representatives.”
As a result, some justices suggested waiting until the Census Bureau gives the figures to the White House, or when the president gives Congress the population data for apportionment, to determine whether there would be sufficient injury by excluding the undocumented immigrants the bureau was able to identify, a decision Wall supported, according to NBC News.
“Based on my understanding from the Census Bureau, there is a real prospect that the numbers will not affect the apportionment,” he said.
The Supreme Court expedited the case so arguments could be made before the bureau’s Dec. 31 deadline to submit the data to the White House and before Trump would be required to submit his report to Congress in January.
