Supreme Court wary of quick ruling on Trump drive to exclude many immigrants from census

The Supreme Court seemed reluctant Monday to issue an immediate, sweeping ruling on President Donald Trump’s plans to exclude undocumented immigrants from the decennial census used to allocate House seats.

During an audio-only oral argument session that stretched to more than an hour and a half, there appeared to be few, if any, takers on the high court for Trump’s effort to leave all unlawful immigrants out of the critical count.

Several of the court’s most conservative justices seemed highly skeptical of the constitutionality of the president’s move, but they also expressed misgivings about ruling on that issue now when thorny questions about smaller groups of unlawful migrants could be just weeks away.

Indeed, many of the justices appeared uncomfortable with diving into the issue amid a profound lack of clarity about the Census Bureau’s ability to figure out how many people it would or could seek to exclude from this year’s still-unreleased census.

Near the outset of Monday’s session, Chief Justice John Roberts seemed to be urging some delay, despite the fact that the court urgently accelerated arguments in the case at the request of the Trump administration. The Justice Department took the case to the Supreme Court after a three-judge panel in New York issued a decision in September barring Commerce Secretary Wilbur Ross from delivering a mandatory census report to Trump that omits unlawful immigrants from the count.

“What is the problem with post-apportionment litigation?” Roberts asked. “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 that will be on apportionment. All these questions would be resolved if we wait until the apportionment takes place.”

Much of the argument session turned on technical procedural questions about whether the suit is premature, since the Census Bureau hasn’t yet provided Trump with its report. The arguments also spurred speculation from some of the justices about whether the Census Bureau has a viable route to even reasonably match the populations Trump proposes to exclude to existing data.

Some justices also speculated that the number of foreigners the Census Bureau ultimately identifies as potentially subject to exclusion could wind up being so small that it wouldn’t have much impact on the apportionment of House seats among the states.

“I find the posture of this case quite frustrating,” Justice Samuel Alito said. “It could be we are dealing with a possibility that is quite important. It could be that this is much ado about very little.”

Acting Solicitor General Jeff Wall, who spoke for the Trump administration, said it was possible officials might not be able to come up with a reliable way to exclude undocumented immigrants beyond the tens of thousands in detention with final orders of removal.

“Based on my understanding from the Census Bureau, there is a real prospect that the numbers will not affect the apportionment,” Wall said.

However, Wall would not commit to limiting the exclusion to detained immigrants. And Justice Elena Kagan contended that identifying several million unlawful immigrants wouldn’t be difficult, including more than 600,000 Deferred Action for Childhood Arrivals recipients and over 3 million people in removal proceedings.

“That sounds pretty feasible to me,” Kagan said. “We get very easily to 4 or 5 million people.”

Wall acknowledged that the federal government has such data, but he said matching it to census data is complex and may not be practical in many cases.

“The problem is the matching,” he said.

The Supreme Court’s newest justice, Trump appointee Amy Coney Barrett, was among those expressing doubts about the constitutionality of excluding undocumented immigrants from the census.

“A lot of the historical evidence and long-standing practice really cuts against your position,” Barrett told Wall, before embarking on an originalism-fueled discussion of the statements on the point from the “founding era.”

The high-court hearing came at a tumultuous time for the Census Bureau, which may be unable to deliver the requisite data before Trump leaves office anyway, effectively making the whole case moot since President-elect Joe Biden opposes Trump’s effort.

By federal statute, the president should receive appointment data by Dec. 31, and must report it to the clerk of the House within a week of the new Congress convening. However, due to the pandemic, the Census Bureau has not committed to being able to hit that Dec. 31 deadline.

The Bureau initially requested in April that Congress extend those deadlines by 120 days. Congress never granted the extension, and in early August, the Bureau officially announced it was reversing its request for an extension and would attempt to deliver apportionment data by the end of the year.

That, in turn, triggered its own set of lawsuits. A lower court initially ruled that the count must continue, before the Supreme Court cleared the way in mid-October for the Bureau to wrap up counting and move on to the next steps.

Earlier in the month, The New York Times reported that the Census Bureau would be unable to deliver apportionment data until at least Jan. 26, days after Biden will be inaugurated, and potentially not until much later after that.

At the time, the Bureau refused to comment on the Times’ reporting, and pointed reporters to a statement from Census Bureau Director Steven Dillingham that did not directly address the timeline: “During post-collection processing, certain processing anomalies have been discovered. These types of processing anomalies have occurred in past censuses. I am directing the Census Bureau to utilize all resources available to resolve this as expeditiously as possible.”

But at the oral arguments on Monday, Wall quickly indicated that while it looked like the Bureau would be unable to deliver apportionment data by the year-end statutory deadline, some data could be delivered in January, without giving a particular timeline.

“The situation is fairly fluid,” Wall said. “We are not currently on pace to send the report to the president by the year-end statutory deadline. But just this morning I confirmed with senior leadership at the Department of Commerce and the Census Bureau that we are hopeful, and it remains possible that we can get at least some of the (presidential memorandum)-related data to the president in January.”

In a conference call with reporters after the hearing, ACLU attorney Dale Ho said he was concerned that even if career experts in the Census Bureau don’t think accurate data can be delivered before late January, Trump appointees may try to do so.

“The government has I think conspicuously refrained from conceding that,” said Ho, who also argued to the justices on Monday. “I don’t think there are any guarantees the administration wouldn’t try to ram something through….I wouldn’t put it past them to try to put some numbers in of dubious accuracy.”

Curiously, none of the justices nor the attorneys made any reference during Monday’s arguments to Biden or the fact that Trump is slated to leave office by Jan. 20. If Trump manages to send the census numbers to the House before leaving office, it’s unclear what the Democratic-controlled House will do with them and whether Biden appointees at the Justice Department would defend Trump’s moves.

The Census Bureau had previously declined to commit to hitting the Dec. 31 deadline to provide the apportionment data.

“We did not say, ‘We're going to be able to meet the December 31 deadline.’ We said, ‘We're working to come as close as possible to the December 31 deadline,’’ Al Fontenot, an associate director at the Census Bureau, said during a late-October call with reporters. "That provides us with the flexibility, if we encounter unexpected challenges, to deal with them and handle them before we actually present the documents," he continued.

Fontenot said at the time the decision on when to deliver data will be made by career staff at the Bureau.

Lawmakers have also apparently been kept in the dark about last-minute scrambling at the Bureau on when apportionment data will be delivered. The Democratic-controlled House Committee on Oversight and Reform asked the Census Bureau for more information on delivery, following the reporting of The Times and others, but said it did not receive information.

“Although we asked for documents relating to these problems and delays last week, we have now been informed that Secretary Ross’ lawyers at the Commerce Department are blocking their release ‘due to litigation concerns,’” Oversight Chair Carolyn Maloney (D-N.Y.) said in a statement on Saturday. “Of course, the existence of separate litigation is not a valid basis to withhold documents from Congress.”

The House Oversight and Reform Committee scheduled a hearing for Thursday.