Court blocks Trump from getting undocumented immigrants’ census data for his reapportionment plan.

Court blocks Trump from getting undocumented immigrants’ census data for his reapportionment plan.

Originally Published in The New York Times

Michael Wines - October 23, 2020

A Census worker last month in New York. Since 1790, legislative representation in the United States has been determined by applying the same formula to census data. The president has a new plan.
Credit...Brendan Mcdermid/Reuters

A three-judge federal panel in California on Thursday barred the Census Bureau from giving the White House a count of the nation’s unauthorized immigrants, dealing a blow to President Trump’s plan to upend the centuries-old method of apportioning seats in the House of Representatives.

Mr. Trump ordered the bureau in July to give him a state-by-state count of people living in the United States without authorization, saying he planned to subtract them from the 2020 census totals that will be used to divvy up House seats among the states next year. In a 90-page opinion, the panel, in the U.S. District Court for the Northern District of California, said doing that would violate both the Constitution and federal laws governing the census and reapportionment.

But the judges went a step further. Noting that Census Bureau officials had testified that they were on the way to assembling an accurate count of at least 90 percent of unauthorized immigrants, the panel ordered the bureau to deliver only census population totals for calculating reapportionment, and to withhold any breakout of the immigrant population.

That ruling does not appear to prevent the bureau from continuing to assemble that state-by-state count, legal experts said. But the panel’s reasoning that the count had progressed far enough to block its delivery could give Supreme Court justices an added argument against Mr. Trump’s plan should the government seek to appeal the ruling to the high court, as seems certain.

The Thursday ruling, in a lawsuit seeking to block Mr. Trump’s plan, was the second in six weeks to summarily reject the president’s effort to abandon a formula that has governed House reapportionment since the first census produced population totals in 1790.

Last month a different three-judge panel in federal district court in Manhattan also unanimously rejected Mr. Trump’s plan without requiring a trial, but did not consider the constitutional issues raised in the California suit. That panel, which included two judges nominated by President George W. Bush and one by President Barack Obama, said the issues in the case were “not particularly close or complicated.”

The California panel, which included two judges nominated by Mr. Obama and one by Mr. Bush, suggested the constitutional issues were equally clear. “The Constitution’s text, drafting history, 230 years of historical practice, and Supreme Court case law all support the conclusion that apportionment must be based on all persons residing in each state, including undocumented immigrants,” the judges wrote.

The lawsuit, brought by the state of California, cities and other jurisdictions nationwide and the Lawyers’ Committee for Civil Rights Under Law, argued that Mr. Trump had acted illegally when he issued an executive memorandum on July 21 declaring that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.”

Demographic experts have said that approach would shift the allocation of House seats slightly in favor of the Republican Party. The plaintiffs claimed the move would cost them both political representation and untold sums of federal dollars that are distributed based on population.

Much of the California opinion drew on accounts of the drafting of Article I of the Constitution, which governs the census and reapportionment, and the 14th Amendment, which eliminated the formula that considered a slave to be three fifths of a person for the purposes of reapportionment.

In each instance, the judges wrote, the drafters clearly concluded — sometimes explicitly — that immigrants, even those who are noncitizens and cannot vote, were to be counted.


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