This morning the Supreme Court heard the Trump v. New York case orally. In this case, 22 states and 15 local governments have questioned the legality of Donald Trump’s plan to exclude undocumented immigrants from the population that will determine the distribution of seats in the US House of Representatives. Unfortunately for those wanting to get a feel for where the Court stands on the major legal issues, the judges have spent most of their time asking the parties’ lawyers about various ways they can possibly avoid ruling those issues . The Census Bureau recently stated that the president may not be able to obtain the data on undocumented immigrant populations he would need to submit allocation numbers excluding them from the total population before his term expires on Jan. 20. Many of the judges seem keen to use this fact to find a way to dismiss the case for non-maturity or some other procedural reason.
The very first question from Chief Justice John Roberts to Acting Attorney General Jeffrey Wall set the tone for most of the remainder of the argument:
Roberts: We have speeded up this case given the December 31st deadline for the secretary [of Commerce] transmit the census to the President. Is this date still valid? Do you still need a decision by this date?
Wall responded that “the situation is fluid” and that it is still possible for the Census Bureau to provide the president with at least “some” of the data he needs before the time runs out. This answer did not seem to satisfy Roberts. It did not satisfy some of the other judges either. For example, Judge Stephen Breyer asked if “You cannot give us more information than what you gave us in your reply to the Chief Justice, which is basically” we are working on it “”. Wall reacted again in response.
Various judges asked if the Census Bureau would actually be able to do much more than give Trump numbers for the roughly 60,000 undocumented immigrants currently in ICE detention, as well as possibly a few others (which are not enough would make sense to change the allocation of congressional seats between states). Wall continued his hedge.
Judge Elena Kagan pointed out that, in fact, the federal government already has information on the number and residence of at least some major categories of undocumented immigrants, such as the approximately 700,000 DACA recipients. Trump could potentially rule these groups out even if he doesn’t have the state numbers for the total population of over 10 million undocumented immigrants. Once again, Wall has backed up the issue and even refused to commit to whether or not Trump plans to exclude the DACA recipients.
There has also been some debate about what exact remedy a court could order, as precedent made it difficult to issue an injunction against the President. The plaintiffs’ attorneys argued convincingly that the injunction can simply oblige the Secretary of Commerce (whose division includes the Census Bureau) to avoid including government figures on undocumented immigrants in the report used for apportionment purposes . and the President is expected to honor the injunction by not attempting to use these numbers to adjust the population for apportionment purposes in his own later submission to Congress. Wall seemed to admit that the President would have to obey such an order. However, this problem could potentially provide an alternate basis for eliminating the case for procedural reasons.
However, I doubt that there will be a majority in the Tribunal in favor of this approach as it would open up the possibility of widespread presidential misconduct in future cases where the President could evade court decisions by claiming that no injunction is his personal conduct could restrict actions. It’s more likely that the majority of judges will either dismiss the case based on maturity or simply wait to see what happens in the next few weeks before making a decision.
To be clear, both Wall and the plaintiffs’ attorney stressed that they would prefer the court to resolve the matter sooner rather than later. However, many of the judges seem much more reluctant. Conservatives in particular seem interested in finding a way to avoid the substantive issues in this case.
Perhaps because of this, there has been very little discussion of these issues. Some judges – including newly appointed Judge Amy Coney Barrett – pointed out that no previous president had ever attempted to systematically exclude undocumented migrants from the apportionment census. Barrett (correctly) remarked that “a lot of historical evidence and longstanding practices really violate your position”. Wall gave the predictable answer that this is all a matter of president’s discretion and that the fact that previous presidents haven’t used it doesn’t mean Trump can’t. Even so, Barrett’s comments were among the few that addressed the material issues, and what she said suggests that the administration may not be able to count on her vote should the court ever rule on these issues.
There was almost no discussion that the text of Article I of the Constitution and Section 2 of the Fourteenth Amendment required a breakdown based on the total number of “persons” in each state, with the only remaining exception being “Indians not” taxed ” (Who was not a citizen of the United States at the time.) As the University of Texas law Prof. Sanford Levinson and I explain in our Amicus Letter, this text clearly indicates that undocumented immigrants and other non-citizens can enter the Census needs to be included, based on the normal meaning of the word “persons” and the fact that any other plausible approach would eliminate the need to exclude “untaxed Indians.” The government’s claim that undocumented immigrants are not actually residents or ” Being residents of “a state makes little sense, as most of them have lived there for years and have no other home . This latter fact also distinguishes them from diplomats and tourists (who have historically not been counted).
At this point in time, however, it is far from clear that there is a majority of judges who actually want to decide these questions. At the very least, they may want to sit on the case, unless and until it becomes clear that they really need to deal with the merits. Even Barrett pointed out that it might be best for the court to wait for the Trump administration to come up with more precise figures on who they are trying to exclude.
Surprisingly, in my opinion, there has also been little discussion of whether the plaintiff state and local governments are entitled to pursue the case, although this is one of the issues to which the Court specifically referred to the case when it applied for an instrument to be issued Listen. However, part of the discussion about data availability can be considered relevant to the current problem. Unless the administration can obtain the data necessary to exclude more than a small number of undocumented immigrants from the apportionment census, it may not have any impact on the number of house seats each state will receive and therefore no “violation” on which the base stands.
CNN’s Supreme Court, Ariane de Vogue, also concludes that many of the judges might prefer to avoid ruling on the case. Your impressions are very similar to mine.
Overall, this has been one of the least informative oral arguments I have ever seen on a major Supreme Court case. The one thing we have learned is that many of the judges may prefer to avoid ruling on the substantive issues. It remains to be seen whether they will be able to do so.