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Supreme Court set to hear arguments on Trump plan to exclude undocumented immigrants from census

The president is trying to "punish" immigrant-rich states, said N.Y.'s attorney general, who is suing the administration.
Image: Immigration activists rally outside the Supreme Court during arguments over a Trump administration plan to ask about citizenship on the 2020 Census on April 23, 2019.
Immigration activists rally outside the Supreme Court during arguments over a Trump administration plan to ask about citizenship on the 2020 Census on April 23, 2019.J. Scott Applewhite / AP file

WASHINGTON — If the Trump administration gets its way, some states would give up a seat or two in Congress and many more would lose millions of dollars in federal grants under a census plan the Supreme Court reviews Monday.

The justices, who are hearing oral arguments in the case virtually because the court is closed by the coronavirus pandemic, will decide whether President Donald Trump has the authority to send Congress a census report that excludes undocumented migrants, a move that would shift money and political power away from states with large immigrant populations.

The Constitution requires a census every 10 years. The results determine how many members of Congress every state gets in the House of Representatives. The data also are used to calculate local governments' share of $1.5 trillion under many federal programs.

In July, Trump said people who are undocumented should not be included in the final count. Under his plan, the Census Bureau would report two sets of figures to the White House — one including everyone who is counted and another allowing him to leave out undocumented immigrants. Trump could then report the smaller number to Congress for use in reapportionment.

His memo said states with policies "that encourage illegal aliens to enter this country and that hobble federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives."

California, Florida and Texas would each lose a seat in the House, and Alabama, Minnesota and Ohio would each keep a seat they would otherwise lose because of population shifts, according to an analysis by the Pew Research Center. Other predictions show Arizona losing a seat and Montana gaining one.

The states would lose an equal number of Electoral College votes, which are based on the sizes of their House delegations.

"He's trying to punish states that are immigrant rich," New York Attorney General Letitia James said, adding that New York also could lose a seat in the House. "What he's attempting to do is basically transfer power from those states that have significant number of immigrants to those that do not."

Led by New York, 22 states, 15 cities and other local governments are asking the Supreme Court to rule that the Trump plan violates the Constitution's command that the census count "the whole number of persons" in every state.

"Every census and every apportionment since 1790 have included all people residing in the United States," said Dale Ho of the American Civil Liberties Union, who will argue the case Monday on behalf of the states. When Congress adopted the current federal law governing the census, it considered excluding noncitizens but rejected the idea, he said.

But the Justice Department said federal law gives the president authority to direct how the census is conducted. The term "persons in each state" in the Constitution has generally been understood to mean usual residents, government lawyers told the court.

President-elect Joe Biden is unlikely to support any such change, so the presidential election may have changed what is at stake in the case. But because federal law requires the president to announce the census findings by Dec. 31, Biden may not have the option to change the House apportionment figures.

However, in mid-November, the Census Bureau indicated that it may not be able to deliver the census data to the White House by the end of the year, because of delays caused by the pandemic. In that event, Biden would be able to make the decision, not Trump.

For now, the states are assuming that the census figures will be ready in time to meet the deadline and that Trump will make the calculations. The justices are expected to issue a decision before the end of the year.