Supreme Court justices expressed incredulity Monday at President Trump’s attempt to exclude illegal immigrants from the census count used to apportion seats in Congress, reacting with disbelief to the government’s claims that it still doesn’t even know if it …
Supreme Court justices expressed incredulity Monday at President Trump‘s attempt to exclude illegal immigrants from the census count used to apportion seats in Congress, reacting with disbelief to the government’s claims that it still doesn’t even know if it will be able to do what the president asked.
Justice Samuel A. Alito Jr. called the case “quite frustrating,” while Justice Amy Coney Barrett said Mr. Trump‘s approach has never been tried before.
“A lot of the historical evidence and the longstanding practice cuts against your position,” she told Solicitor General Jeffrey Wall, who argued the case for the Justice Department.
At issue is Mr. Trump‘s memo issued over the summer ordering the Census Bureau to produce two counts out of the 2020 tally. The first is the usual count of all persons here on April 1, while the second would try to subtract those who don’t have permission to be here.
He wants that second number to be used by Congress to divvy up the 435 seats in the House for the next decade — a move that could lessen the political clout of states such as California with a large number of illegal immigrants.
But Mr. Wall on Monday tamped down expectations, saying it’s not clear the Census Bureau will be able to identify very many of those migrants.
He admitted there’s no chance of identifying all 10 to 12 million illegal immigrants believed to be in the country, so some of them will be included in the apportionment count.
On the other side of the equation, he said, it should be easy to subtract tens of thousands of migrants held in detention by U.S. Immigration and Customs Enforcement on April 1, or Census Day.
But where the bureau will fall in between 10,000 and 10 million is in doubt, Mr. Wall said.
He said they have data on DACA recipients, and on millions of people who are in deportation proceedings of some kind, but they don’t know whether they’ll be able to match those people to specific census records.
“We just don’t know at this point,” Mr. Wall said.
Justice Elena Kagan said that could knock out up to 5 million people. Mr. Wall, though, said that’s speculative and the numbers might be so small that they wouldn’t affect which states get seats.
New York Solicitor General Barbara Underwood, arguing against the Trump administration, said even small numbers could punish New York.
The practicality aside, though, the court did raise critical questions about who does get counted and why.
The census is supposed to count inhabitants, but the justices said that concept has some gray areas.
Under prodding by Justice Alito, Ms. Underwood said foreign diplomats on a three-year tour of the U.S. don’t count. Neither would someone who’s here on a temporary tourist visa.
But she said migrants who came on a visitor visa but overstayed, becoming illegal immigrants, should be counted because they are “now outside the realm of [when] we expect them to leave.”
“Their undocumented status doesn’t erase their presence,” she said.
Several justices said with all the unknowns Mr. Wall laid out, it might make sense to wait until early next year, when the president delivers his number to Congress, before ruling on the matter.
But even there, Mr. Wall said it’s not clear what timeline the Census Bureau will be able to meet.
He said the bureau is “not currently on pace” to get the report to Mr. Trump by the law’s deadline of the end of the year.
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