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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Monday, December 21, 2020

Justices Put Off Ruling on Trump Plan for Unauthorized Immigrants and Census


WASHINGTON — The Supreme Court on Friday dismissed a lawsuit challenging the Trump administration’s plan to exclude unauthorized immigrants from the calculations used to allocate seats in the House, saying it was premature.

The court’s ruling handed the administration an interim victory, allowing it to continue to pursue an effort that could shift the allotment of both congressional seats and federal money to states that are older, whiter and typically more Republican.

“At present,” the court said in an unsigned opinion, “this case is riddled with contingencies and speculation that impede judicial review.”

“We express no view on the merits of the constitutional and related statutory claims presented,” the opinion said. “We hold only that they are not suitable for adjudication at this time.”

The court’s three liberal members dissented. They said that the case was far enough along for a decision and that they would have ruled the plan unlawful.

“The plain meaning of the governing statutes, decades of historical practice and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Justice Stephen G. Breyer wrote in a dissent joined by Justices Sonia Sotomayor and Elena Kagan. “The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so.”

“Where, as here, the government acknowledges it is working to achieve an allegedly illegal goal,” Justice Breyer wrote, “this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.”

Dale Ho, a lawyer with the American Civil Liberties Union, which represents some of the challengers, said the ruling was a temporary setback.

“This Supreme Court decision is only about timing, not the merits,” he said in a statement. “This ruling does not authorize President Trump’s goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives.”

“If this policy is ever actually implemented,” Mr. Ho said, “we’ll be right back in court challenging it.”

The practical effect of the ruling may be limited because Census Bureau officials have said they may not be able to produce data on unauthorized immigrants before Mr. Trump leaves office. When the case was argued last month, Jeffrey B. Wall, the acting solicitor general, acknowledged that the situation was fluid and that the bureau may not be able to identify many immigrants who are in the United States without authorization.

By law, the Commerce Department is required to supply census information to the president by the end of the year, but it may not be able to meet that deadline. Mr. Wall indicated that the Census Bureau does have good data on the tens of thousands of unauthorized immigrants held by Immigration and Customs Enforcement, but that number is almost certainly too small to change apportionment.

He was less certain that the bureau could match records concerning people subject to orders of removal, young immigrants known as Dreamers or other categories of unauthorized immigrants.

The Constitution requires congressional districts to be apportioned “counting the whole number of persons in each state,” using information from the census. In July, Mr. Trump issued a memo taking a new approach. “For the purpose of the reapportionment of representatives following the 2020 census,” the memo said, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.”

“Current estimates suggest that one state is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the state’s entire population,” the memo said, apparently referring to California. “Including these illegal aliens in the population of the state for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.”

In the memo, Mr. Trump ordered Wilbur Ross, the secretary of commerce, to provide him with two sets of numbers, one including unauthorized immigrants and the other without them. But how Mr. Ross would derive the second set of numbers became unclear after the Supreme Court last year rejected his efforts to add a question on citizenship to the census.

In dissent, Justice Breyer said the memo was powerful evidence. “The harm is clear on the face of the policy,” he wrote. “The title of the presidential memorandum reads: ‘Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.’”

In the spring, as the coronavirus pandemic slowed data collection, the administration asked Congress to extend the legal deadline for delivering reapportionment totals from the end of the year to April 2021.

But Mr. Trump abruptly reversed course in July, ordering that the Dec. 31 deadline be met. That forced the Census Bureau to try to complete five months of data processing in about two and a half months.

The majority in Friday’s decision said the Census Bureau faced daunting challenges. “Everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status,” the opinion said.

The case before the court, Trump v. New York, No. 20-366, was 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.

A three-judge panel of the Federal District Court in Manhattan ruled that the new policy violated federal law. Two other courts have issued similar rulings, while one said the dispute was not ripe for consideration.

In an unsigned opinion in the case from Manhattan, the panel said the question before it was “not particularly close or complicated.”

“The secretary is required to report a single set of figures to the president — namely, ‘the tabulation of total population by states’ under the ‘decennial census’ — and the president is then required to use those same figures to determine apportionment using the method of equal proportions,” the panel wrote, quoting the relevant statutes.

The two sides in Friday’s Supreme Court decision disagreed about whether Mr. Trump’s plan would affect not only House seats but also the distribution of federal money.

“Given the connection between the decennial census and funding allocation, a change of a few thousand people in a state’s enumeration can affect its share of federal resources,” Justice Breyer wrote in dissent.

The majority said the link between Mr. Trump’s apportionment plan and federal money was open to dispute. “According to the government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum,” the opinion said, meaning that the plan “will not inexorably have the direct effect on downstream access to funds or other resources predicted by the dissent.”

Indeed, the majority said, “how that question will be addressed by the secretary and the president is yet another fundamental uncertainty impeding proper judicial consideration at this time.”

Should Mr. Trump be able to proceed with his plan, further litigation is certain. But in dissent, Justice Breyer said the majority should have acted immediately. “Waiting to adjudicate plaintiffs’ claims until after the president submits his tabulation to Congress, as the court seems to prefer, risks needless and costly delays in apportionment,” Justice Breyer wrote.

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak  Facebook

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