Originally Published in the Daily Beast
Opinion by Jay Michaelson - December 1, 2020
The U.S. census was back at the Supreme Court Monday, as so-called “conservatives” sought to radically change 200 years of policy and exclude undocumented people from the official census count that is used to apportion representation in Congress.
The results would be dramatic: States with many “illegal aliens,” including California, Florida, Texas, and New York, would lose representation. States with fewer undocumented immigrants, which just so happen to be older and whiter, would gain. Indeed, we learned in a shocking 2019 memo by deceased Republican operative Thomas Hofeller that the whole idea of this change was to benefit “non-Hispanic whites.”
Based on Monday’s oral arguments in the case, Trump v. New York, it seems almost certain that the Court’s 6-3 conservative majority will hand Donald Trump a temporary victory—cue the Twitter exclamation points—but, in the end, another loss. Or, as Trump would put it, Great! then Sad!
The reason is, in legal terms, that the case isn’t “ripe.”
On the merits, challengers, led by the state of New York and the ACLU, made a persuasive case based on the clear constitutional language that representation is to be based on the “number of persons in each state.” Not citizens, a term used elsewhere in the Constitution, but persons. Justice Bret Kavanaugh called the challengers’ arguments “forceful.” Justice Amy Coney Barrett noted that Trump’s exclusion would be unprecedented in American history. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all seemed to agree.
If the case were decided on the merits, it might go 9-0.
But it won’t be, because the challengers up against Trump here had enormous trouble saying why the Court should decide the case now.
At first, the reason was that the policy change, announced in a July 2020 memorandum by President Trump, would scare immigrants from answering the census. But that part of the census is over. So New York and the ACLU have had to change their tune, now arguing that the Court must intervene immediately to stop an unlawful and possibly unconstitutional policy from taking effect.
The trouble is, it’s not at all clear how any of this is going to work.
At oral argument, every one of the six conservative justices noted that it would be logistically impossible to exclude all 10 million undocumented people. The number excluded might be as low as 60,000, which is the number of people currently in ICE custody. That might be too low to affect apportionment. And if it doesn’t, then legally speaking it’s no harm, no foul.
Nor is it clear that the work can get done before Trump leaves office on January 20, 2021; the Census Bureau has already asked for an extension. If the Bureau can’t certify the numbers before Trump leaves office, President-elect Biden will simply nullify the memo and go back to the normal policy.
As Chief Justice John Roberts put it in a question to ACLU lawyer Dale Ho, “Right now… we don’t know what the Secretary is going to do, we don’t know what the President is going to do, we don’t know how many aliens will be excluded, we don’t know what the effect of these will be on apportionment. All these questions would be resolved if we wait for the apportionment to take place. So why aren’t we better advised to do that?”
All five of the other conservative justices—including Justice Thomas, who asked numerous questions, as he has often over the last several months—made similar points.
Ironically, the Court dismissing the case for lack of “ripeness” would further prolong a battle that has been going on for literally the entire Trump presidency.
Way back in Spring 2017, White House advisers Steve Bannon and Kris Kobach—one now facing fraud charges for stealing from a ‘Build the Wall’ fundraiser, the other a leading crusader against voter fraud who was unable to win a single case about it—advanced a plan to add a citizenship question to the census.
First, just as New York had argued, the question itself would deter immigrants and their families from answering the census, depressing the count in states with large Latino populations—chiefly California, Florida, and Texas. Second, the data would be used to exclude “illegal aliens” from congressional districting, which could shift up to a dozen congressional seats to areas with more “non-Hispanic whites” in them.
Commerce Secretary Wilbur Ross, who supervises the Census Bureau, lied under oath about all of this. He lied about the purpose of the question, saying it was to help the Department of Justice enforce the Voting Rights Act. He lied about meeting Bannon and Kobach. And he conducted a sham notice and comment period on the basis of the false pretenses for the law while keeping his real agenda secret.
All this came to light last year, and in July 2019, the Supreme Court ruled 5-4 that while a citizenship question might be lawful, lying throughout the process was not. Writing for the Court, Chief Justice Roberts said that the law “calls for an explanation for agency action. What was provided here was more of a distraction.”
That seemed to be the end of this corrupt, dishonest, and ultimately pathetic saga. But then came the July memo, which made clear that the point all along was to exclude undocumented people from the census entirely.
That, as noted above, is probably illegal. But at oral argument, the justices wrangled for almost an hour with who would be excluded, and how. How will the Census Bureau match census responses to immigration records? How many people are we talking about? What if only people about to be deported were excluded? What about people who literally came across the border on March 31, one day before the census “snapshot” date of April 1?
There may be answers to those questions, but it was clear that all six conservatives were in no mood to speculate. If the number of “illegal aliens” turns out to be large enough, they said, then come back to us. If not, then we’ll be glad we didn’t waste our time now.
The net result will almost surely be a contradiction.
On the one hand, it was remarkable how unified the justices were in rejecting President Trump’s memorandum as unlawful and improper.
On the other hand, when this case is dismissed for lack of ripeness, Trump will doubtless crow about it as a great victory. If the count is done in time, he will get his two sets of census results, one with all “persons” counted, the other with undocumented ones excluded. And he will surely send the exclusionary one to Congress.
But if today’s argument is any indication, that victory will be short-lived. If the number of excluded people affects apportionment, New York, the ACLU, and their fellow plaintiffs will be right back in court, and Trump will lose.
Just like he did on Election Day.