The Supreme Court Knows Trump’s Nativist Census Scheme Is Unconstitutional

Originally Published in Slate

Mark Joseph Stern - November 30, 2020

But the conservative justices might not intervene until it’s too late.

Trump supporters wave signs that read "LEGAL VOTES MATTER" and "TRUMP 2020" in front of the Supreme Court. — A pro-Trump rally at the Supreme Court in Washington on Nov. 14. Olivier Douliery/Getty Images

Three weeks before he leaves office, Donald Trump plans to punish states with large immigrant communities by denying them fair representation in Congress. Although this plot violates a bedrock constitutional principle, the Supreme Court may not be willing to nip it in the bud. At oral arguments on Monday, a majority of justices seemed to acknowledge that Trump’s scheme violates the law. But several fretted that they might not have authority to block his policy before it inflicts real damage. If the court ducks this issue now, it could create a huge mess that consumes the final days of Trump’s presidency—and the early days of Joe Biden’s. The incoming president probably doesn’t want to spend his first hours in the White House combating Trump’s sabotage of the census, but SCOTUS may leave him no other choice.

Trump’s administration has sought to subvert the census ever since he entered office. This particular plot targets one specific function of the census: the apportionment of congressional districts. Every 10 years, the Constitution directs Congress to “apportion” (divide up) seats in the House of Representatives between the states “according to their respective numbers, counting the whole number of persons in each state.” Under federal law, the Commerce Department (which houses the Census Bureau) calculates this information, then transmits it to the House of Representatives. The House clerk certifies the data and sends it along to state governors. Due to population changes, states in the Northeast and Midwest are set to lose seats, while those in the South and West are set to gain them.

In July, Trump upended the usual apportionment process in an alarming memo. The president declared that undocumented immigrants are not “inhabitants” of the United States because they are not authorized to live here. By extension, he claimed, these immigrants should not be included in the apportionment count. Trump then directed Secretary of Commerce Wilbur Ross to exclude undocumented people from the apportionment count he is scheduled to send to Congress in December or January. If executed, this plan will strip at least one seat—and one vote in the Electoral College—from California and Texas.

A coalition of states led by New York, as well as advocacy groups led by the ACLU, sued to halt this policy. They have a strong argument: Every shred of historical evidence demonstrates that the Constitution, as originally understood, requires apportionment based on total population—including immigrants, whether documented or not. While the Constitution initially counted enslaved people as three-fifths of a person, the 14^th Amendment repealed this rule, requiring the government to count all inhabitants equally. By asserting that certain immigrants are not “persons” who reside in the United States, Trump is creating a modern three-fifths clause.

Justice Stephen Breyer came out swinging against this perverse endeavor. “About 40 briefs,” Breyer told acting Solicitor General Jeff Wall, show “that the history, the language, the consequences, the purposes, and a bunch of other things argue against you.” The Constitution says “persons,” Breyer reminded Wall; the government has “always counted people who were here and not naturalized, and this has never happened before that you excluded illegal aliens, and it has a lot of negative effects on the states.” An exasperated Breyer asked Wall, perhaps rhetorically: “I mean, what do you want to say? They’re persons, aren’t they?”

Remarkably, Justice Amy Coney Barrett appeared to agree. “As Justice Breyer said,” Barrett told Wall, “a lot of the historical evidence and long-standing practice really cuts against your position. And, you know, there’s evidence that in the founding era, an inhabitant was a dweller who lives or resides in a place.” Wall retorted that “there’s nothing usual or settled about your residence if your presence is violating federal law and the sovereign hasn’t agreed to let you stay.” But Barrett got the upper hand: “If an undocumented person has been in the country for, say, 20 years, you know, even if illegally,” wouldn’t that person “have a settled residence here?” Wall raised the example of “embassy personnel” who live in another country for long periods; Barrett sounded unconvinced. “You concede,” she asked, “that illegal aliens have never been excluded as a category from the census?” Wall hesitantly said yes.

Justice Brett Kavanaugh admitted the weakness of Trump’s claims too, stating that there are “forceful” arguments against the “categorical exclusion of all unlawful noncitizens.” But it shouldn’t be too surprising that Breyer, Barrett, and Kavanaugh appear to agree on the unconstitutionality of Trump’s memo: The law here is unambiguous. As the ACLU’s Dale Ho explained during his arguments on Monday, this nativist policy flouts constitutional text andhistorical practice going back to the beginning of the republic. Ho even used an 1828 dictionary to illustrate the founding-era meaning of “residence”—the same dictionary that the Trump administration cited to bolster its own argument. Any attempt to defend Trump’s memo inevitably deflates when exposed to reality. That’s why three district courts found the memo unlawful.

But none of this guarantees a defeat for Trump. To varying degrees, all the conservative justices expressed concern that they can’t yet decide this case, for one major reason: We don’t know which immigrants Trump will actually try to exclude. The 2020 census did not ask about citizenship status, and there is no reliable count of undocumented immigrants by state. At Trump’s direction, the Census Bureau has sought to create one using administrative records, but it is struggling. The bureau is currently racing to process a mountain of data in half the timeit was previously allotted; it is supposed to send that data to Trump by Dec. 31, but now says it cannot meet the deadline. At the same time, the bureau is trying to identify undocumented immigrants in every state, a task that is essentially impossible due to the lack of records. This undertaking is a race against the clock: If the calculations stretch beyond Jan. 20, Joe Biden is certain to scrap the memo, rendering the whole case moot.

The Trump administration would be perfectly happy with a punt that leaves the underlying issue unresolved. Wall, the acting solicitor general, urged the justices to dismiss the case, insisting that it’s just too soon to tell what Trump will end up doing with apportionment. The conservative justices seemed amenable to this option. Kavanaugh mused that Trump might merely exclude “subsets of illegal aliens,” like those currently held in detention. Chief Justice John Roberts entertained this idea, too: Maybe Trump will only subtract a few categories of undocumented immigrants from the count, a number so small that it won’t change the apportionment of House seats.

Breyer, along with Justices Sonia Sotomayor and Elena Kagan, resisted this effort to duck a decision. As Kagan pointed out, the administration already has records on “4 or 5 million” undocumented immigrants, including 700,000 Deferred Action for Childhood Arrivals program recipients and 3.2 million people who are not detained but may be deported. Moreover, a policy targeting “subsets” of immigrants would not fix the constitutional problem, because it would still exclude immigrants on the basis of their immigration status. No matter what “subset” Trump used, he would still exclude immigrants who reside in the country for census purposes. Sotomayor noted that 57 percent of Immigration and Customs Enforcement detainees are eventually released into the U.S. And Ho reminded the justices that lawful permanent residents—who do count under Trump’s memo—can wind up in ICE detention as well.

By the end of arguments, the court was more confused than ever. Wall provided no clarity on the scope or timeline of Trump’s eventual actions. His uncertainty may allow the conservative justices to avoid rebuking the administration on its way out the door. Such a decision would be foolish: The policy already exists, and the government is rushing to implement it. But the conservative majority looks more likely to wait and see how the scheme plays out, anticipating that Trump may fail to put his plan into action before Jan. 20.

But they won’t be able to sidestep the broader fight over political representation of immigrants and other minorities for long. Over the next few years, the Supreme Court will be inundated with cases involving congressional and legislative districts. Every state is about to redraw its district lines, and at least one, Missouri, plans to exclude immigrants (and children) from the population base. This move would deny political representation to immigrants and shift power from diverse cities to white, rural regions. The Supreme Court has never permitted or denied this method of redistricting—which may only be feasible if Trump can push through his (faulty) census data before leaving office. SCOTUS might be able to dodge Monday’s case and buy itself a few months of peace. But it cannot opt out of the redistricting wars just beyond the horizon.