Federal Court Rejects Trump’s Order to Exclude Undocumented From Census
by Michael Wines
WASHINGTON — A federal court on Thursday rejected President Trump’s order to exclude unauthorized immigrants from population counts that will be used next year to reallocate seats in the House of Representatives, ruling that it was so obviously illegal that a lawsuit challenging the order need not go to a trial.
The court, a three-judge panel in Federal District Court in Manhattan, said Mr. Trump’s proposal exceeded his authority under federal laws governing the census and reapportionment. The specially convened panel said there was no need to consider a second claim in the lawsuit that the president’s order violated the Constitution’s requirement to base apportionment of the House on “the whole number of persons in each state.”
“The merits of the parties’ dispute are not particularly close or complicated,” the judges wrote in granting summary judgment to the plaintiffs, a view that was broadly shared by legal scholars. Two of the judges, Richard C. Wesley and Peter W. Hall, were named to the bench by President George W. Bush. The third, Jesse M. Furman, was nominated by President Barack Obama.
The case involved lawsuits brought by two sets of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations. The groups argued that Mr. Trump’s order would cause some of them to lose representation in the House and would damage all of them by leading to a less accurate census.
Since the first census was taken in 1790, the number of seats each state holds in the House of Representatives has been based on counts of everyone living in the United States regardless of citizenship or legal status, except for slaves and “Indians not taxed” during the nation’s early years. Former slaves gained citizenship in 1866; all Native Americans did in 1924, although they were counted in regular censuses beginning in 1900.
Mr. Trump tried to scrap that process in July, telling the Commerce Department in a memorandum that the Census Bureau should produce two population counts — one the same as those taken every decade, and the other an estimate of the number of unauthorized immigrants living in each state.
Subtracting the immigrant population from census totals would have excluded millions of people from the population counts used for reapportionment, reducing the number of House seats allotted to states with large immigrant populations like California and Texas. Those seats would have been redistributed to states with few unauthorized immigrants — in particular Alabama, which is projected to lose a House seat next year.
Excluding noncitizens from reapportionment totals has long been a cause among many Republicans, who traditionally have been seen as the political winners under such a change. Some recent estimates have suggested that Republican gains would be small.
Mr. Trump had cast his order as a blow to “a broader left-wing effort to erode the rights of American citizens.” Given the tiny chance that a court would find his order legal, some analysts concluded that he was making more of an election-year statement to his supporters than a serious effort to upend 230 years of political history.
Under federal law, the Census Bureau forwards preliminary population totals for each state to the secretary of commerce, who must deliver them to the president before the end of each census year. The president then forwards the totals to Congress for use in reapportionment.
The court said the president’s order excluding unauthorized immigrants violated the law “in two clear respects.” It said federal law required the production of a single set of state population totals, making two separate counts illegal. Beyond that, the judges wrote, Mr. Trump’s memorandum “violates the statute governing reapportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons’ in a ‘state’ as Congress used those words.”
It was not immediately clear how — or whether — the ruling would affect a second legal battle loosely tied to Mr. Trump’s order: a fight over the administration’s command last month to shave four weeks off the time reserved for the population count.
The White House had earlier agreed to delay the delivery of census totals to the president, legally required by Dec. 31, to April 2021 because of delays caused by the coronavirus pandemic. But the administration later reversed itself, ordering the count cut short so the original deadline could be met.
That move was widely seen as an attempt to ensure that Mr. Trump would still be able to control the census totals and noncitizen estimates sent to Congress for reapportionment, even if he lost his re-election bid.
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