The opinion said the case was "riddled with contingencies and speculation" that impede judicial review. The president has sought to use a census count that does not include undocumented immigrants.



The U.S. Supreme Court has thrown out a lawsuit that was trying to block President Trump's plan to exclude undocumented immigrants from a census count. This count is used to allocate congressional districts to states. NPR legal affairs correspondent Nina Totenberg is here to talk about this. Hi, Nina.


MARTIN: Remind us of the circumstances of this case, if you could.

TOTENBERG: Well, this is all about, as you said, how many seats are in the House of Representatives for each state, which gets the numbers reallocated every 10 years after the census. And in July, President Trump ordered the Census Bureau to send him two sets of numbers by the end of the year. And one set would be what the Constitution refers to as the whole number of persons in each state. The second would be that number minus the number of undocumented immigrants living in each state. And Trump was going to send that second number for purposes of allocating how many seats each state would get. Twenty-three states, many with large numbers of immigrant residents, sued, along with immigrant rights groups. And the lower courts found that Trump's effort was illegal under the Constitution or federal statutes or both.

MARTIN: So it found its way all the way to the U.S. Supreme Court. Explain exactly what happened today.

TOTENBERG: In an unsigned opinion - and, remember, the court heard this case argued just on November 30 - and its unsigned opinion said it would be premature to rule on the case right now because, quote, "The case is riddled with contingencies and speculation." And, in fact, even the administration doesn't know how many undocumented immigrants there are or where they live. The administration's solicitor general admitted that in the Supreme Court. The three liberal justices said basically that there's enough of a record in this case to say that the administration's plan is clearly illegal under federal law. And in fact, census numbers used to determine each state's share of seats in the House and the Electoral College have always included both citizens and noncitizens, regardless of their immigration status.

MARTIN: So what are the practical implications? I mean, what does this mean for the census?

TOTENBERG: (Laughter) Well, the opinion allows the Trump administration to try to implement its policy, but the extent to which it can actually do that in the next few weeks is uncertain at best. First of all, immigrant rights organizations warned that they would go back to court if the administration tries to do that. I talked to Dale Ho of the ACLU, who argued part of this case in the Supreme Court, and he said that if the administration does that, we'll go back to court, and we'll win. Also, it's the last few weeks of the Trump presidency. The Census Bureau indicated this fall that it might not be able to meet the December 31 deadline for reporting its figures because of the COVID-19 pandemic. And remember that it geared up for its usual census right as the pandemic was hitting at full force. So that's where we are at the moment.

MARTIN: So I'm going to ask you to try to project into the future because so much is still hanging in the balance. What's the next step here?

TOTENBERG: Well, even if Trump gets the figures on time or some figures, maintains that he has reliable figures, and sends them to the House of Representatives, the clerk of the House may, if she chooses, decline to accept those as unreliable and kick the census back to the new Biden administration to complete the numbers for reapportionment. That's never happened before. But Trump's norm-busting attempts to leave out undocumented immigrants from the count could end up provoking yet another first. My guess - they're just not going to be able to get the figures in time.

MARTIN: That's never happened before - a sentence we've said a lot over the past year. NPR legal affairs correspondent Nina Totenberg, thanks.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.