Trump Administration Asks Supreme Court to Intervene in Census Dispute
FAIR Take | September 2020
On July 21, President Trump issued an executive memorandum ordering the Census Bureau to exclude illegal aliens from the 2020 Census for the purposes of congressional apportionment. At the time, FAIR’s Dan Stein remarked that the memorandum “is an honest attempt to ensure that the Constitutional mandate to count every person residing in the United States and guarantee full and fair representation to every citizen and lawful immigrant will be carried out.”
Without excluding illegal aliens from the apportionment base, states with high numbers of illegal aliens would receive more federal grant money and - importantly - more seats in the U.S. House of Representatives and electors in the Electoral College. This means that sanctuary states such as California and New York will actually benefit from encouraging millions of illegal aliens to live within their borders. States with smaller illegal alien populations, such as Alabama, actually sued the government in 2018 over this issue, arguing that they could unfairly lose seats to states with higher populations of illegal aliens.
Open-borders groups took to the courts to stop this action. Groups filed multiple complaints against the administration just days after the release of the memorandum, and a three-judge court in New York blocked the administration from enforcing the memorandum. Their decision argued that the memorandum is in “violation of Congress’s delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers under 2 U.S.C. § 2a and 13 U.S.C. § 141.”
The Trump administration is now asking the Supreme Court to take up the case for review. Solicitor General Jeff Wall issued a motion for expedited consideration of the case on September 22, arguing that “Congress has vested discretion in the Secretary to determine, subject to the President's supervision and direction, how to conduct the decennial census - and the Executive Branch has long exercised that discretion by considering administrative records and data in addition to that obtained by the census questionnaire.”
This request comes at a decisive time for the court following the death of Justice Ruth Bader Ginsburg on September 18. Until the president and Senate fill that vacancy, the court now has only eight justices. The Trump administration faced a Census-related judicial defeat in June 2019, when the Supreme Court ruled in a 5-4 decision that the Trump administration could not add a citizenship question to the 2020 Census. Chief Justice John Roberts’ majority opinion argued that the Commerce Department did not adequately justify why they added the question in the first place. At this time, it is unclear whether the Supreme Court will accept the Solicitor General’s request to take up the apportionment question.