Justices expressed doubts about a plan to cut undocumented immigrants from a key census count — one that would exclude them for purposes of drawing new congressional districts.



At the U.S. Supreme Court today, justices seemed doubtful about President Trump's claim that he can exclude all undocumented immigrants from the census count. The Constitution mandates that the Census Bureau count the, quote, "whole number of persons" living in each state to figure out how many congressional seats and electoral college votes are allocated to each state. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Never in U.S. history has the census excluded unauthorized immigrants from its count. But in July President Trump issued a memorandum instructing the Census Bureau to give him two sets of numbers, one delineating the whole number of persons living in each state and a second number for apportioning congressional districts, which subtracts all undocumented immigrants from the count. Three federal courts blocked Trump's order, declaring that it violated the Constitution or federal statutes or both. In the Supreme Court today, acting Solicitor General Jeffrey Wall was in the unenviable position of telling the justices that he didn't know how many illegal aliens Trump plans to exclude.


JEFFREY WALL: As of this very morning, career experts at the Census Bureau confirmed with me that they still don't know even roughly how many illegal aliens it'll be able to identify, let alone how their number and geographic concentration might affect apportionment.

TOTENBERG: Chief Justice Roberts noted that the court had expedited this case because Trump had asserted he needed the numbers by December 31 in order to allocate congressional seats.


JOHN ROBERTS: Is that date still operative? Do you still need a decision by that date?

WALL: Well, the situation is fairly fluid, Mr. Chief Justice. But isn't that going to be like having to unscramble the eggs? Any change in any one state, of course, is going to have ripple effects all across the country.

TOTENBERG: Wall replied that the administration still doesn't know what is, quote, "feasible." It may be able to at least identify some small subset of illegal aliens, for instance those in ICE detention and perhaps some others. Justice Alito.


SAMUEL ALITO: I find the posture of this case quite frustrating. It could be that this is much ado about very little. There are only 31 days left in the year. To exclude the 10.5 million seems to me a monumental task.

TOTENBERG: With Wall's uncertainty, the justices started looking for exit ramps in this case. After all, Census Bureau officials have indicated that because of the pandemic, they may not be able to complete the census until after Trump leaves office. Still, Wall pressed on. The administration is on an extremely compressed schedule, he said, and should not be barred from this opportunity. But if Trump was looking for help from his appointees, he didn't get much. Here, for instance, is his most recent appointee, Justice Amy Coney Barrett.


AMY CONEY BARRETT: A lot of the historical evidence and longstanding practice really cuts against your position. You can see that illegal aliens have never been excluded as a category from the census.

TOTENBERG: Anyway, Barrett went on to say, given the uncertainty about the Census Bureau's ability to come up with any firm numbers, perhaps the court should wait and see what develops. Representing New York, state Solicitor General Barbara Underwood argued that there's nothing to wait for.


BARBARA UNDERWOOD: The framers wanted a system that could not easily be manipulated, so they decided to count just the persons living in each state. The policy here would, for the first time, reject that choice.

TOTENBERG: The ACLU's Dale Ho, representing immigrant rights groups, added that waiting until after a Trump reapportionment would be very disruptive for states that will quickly be in a crunch to redraw district lines. Even something that sounds easy, he said, like counting people in ICE detention as illegal, is in fact not so easy because some people in ICE detention are legal permanent residents. Chief Justice Roberts, still looking for an exit ramp - why not wait until the apportionment numbers are set for each state and then deal with a challenge if there is one?


ROBERTS: Right now we don't know what the secretary's going to do. We don't know what the president's going to do. We don't know how many aliens will be excluded. We don't know what the effect of that will be on apportionment. All these questions would be resolved if we wait until the apportionment takes place. So why aren't we better advised to do that?

TOTENBERG: Unspoken was what was on everyone's mind. Census Bureau officials have indicated they likely won't finish until the end of January at the earliest, and Trump won't be president then.

Nina Totenberg, NPR News, Washington.

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