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Supreme Court Punts In Census Case, Says It's Premature To Decide The Issue

Protesters carrying signs about the census gather outside the U.S. Supreme Court in 2019.
Protesters carrying signs about the census gather outside the U.S. Supreme Court in 2019.

The U.S. Supreme Court dodged a ruling on whether President Trump can exclude undocumented immigrants from a key census count. The opinion said the case was "riddled with contingencies and speculation that impede judicial review."

"At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this" case is "premature," the justices wrote.

The Constitution requires that there be a count of the "whole number of persons" in the country every 10 years, and that congressional seats be allocated based on that population count in each state. The Electoral College votes are identically apportioned.

Census numbers used to determine each state's share of seats in the House of Representatives and votes in the Electoral College have always included both citizens and noncitizens, regardless of their immigration status.

But in July, President Trump issued a memorandum ordering the Census Bureau to send him two sets of numbers. One set was to be the whole number of persons in each state. The second set would allow the number of undocumented immigrants in each state to be subtracted from those numbers for purposes for determining how many seats each state gets in the House of Representatives.

A total of 23 states challenged Trump's directive in court, along with immigrant rights advocates and other groups, and three lower courts — including one in New York that released the ruling reviewed by the Supreme Court — issued orders blocking the administration from carrying out Trump's memo. They contended the Trump order violated the Constitution, census statutes, or both.

The Trump administration argued that under federal law, the president has "virtually unfettered discretion" as to what data is used in the decennial census. But the lower courts rejected that claim, with both Republican- and Democratic-appointed judges ruling against him.

Trump appealed to the Supreme Court, but even red states with large immigrant populations did not support his position, among them Texas, Florida and Arizona.

Among the arguments made by the administration was the assertion that undocumented immigrants are not inhabitants, as the Framers would have understood the term when writing the Constitution and deciding how to divide up federal power among the states.

Countering that argument, states and immigrant groups noted that about two-thirds of unauthorized immigrants have lived in this country for at least 10 years, with the median being 15 years.

The litigation added difficulty for an already burdened Census Bureau, which geared up for the nationwide rollout of the census count just as the COVID-19 pandemic began hitting with full force in April. And the Census Bureau indicated this fall that it might not be able to meet the Dec. 31 deadline for reporting its figures.

Nor has the bureau been able to ascertain what portion of those people living in the United States are not here legally.

Even if the census figures were to be sent to Trump by the end of the year, by law, he has just 10 days to carry out his "ministerial duty" to convey to Congress how many congressional seats each state is supposed to get. Whatever figures he sends to the House, the clerk of the house may, if she chooses, decline to accept those not viewed as reliable, kicking the census back to the new Biden administration to complete the numbers for reapportionment. That's never happened before. But Trump's norm-busting attempt to leave out undocumented immigrants from the count could end up provoking yet another first.

Copyright 2020 NPR. To see more, visit https://www.npr.org.