Opinion analysis: Court tosses challenge to Trump’s plan to exclude unauthorized immigrants from congressional reapportionment

Posted Fri, December 18th, 2020 2:00 pm by Amy Howe

The Supreme Court on Friday ruled that it was too early to resolve the legality of the Trump administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The decision puts at least a temporary end to the litigation challenging the president’s plan. But the ruling, from which the court’s three liberal justices dissented, leaves open the possibility that the challengers could return to court if the Trump administration implements the plan during its final month in office.


As required by the Constitution, the United States conducts a census every 10 years to determine its population, which is then used to determine how many seats each state gets in the House of Representatives. Once the census is finished, the House apportionment process occurs in two steps. First, the secretary of commerce is required under federal law to send a report to the president by Dec. 31 containing the “tabulation of total population by States … as required for the apportionment” of seats in the House. Second, the president must send a report to Congress by Jan. 10 that contains “the whole number of persons in each State,” as determined by the census, along with “the number of Representatives to which each State would be entitled.”

Throughout U.S. history, the population numbers used to allocate seats in the House have included everyone living in each state, regardless of their immigration status. But in July 2020, President Donald Trump departed from that practice, announcing that the total population used to calculate the number of representatives for each state would not include people who are living in the United States without authorization. In a memorandum, Trump ordered Secretary of Commerce Wilbur Ross to provide him with two sets of numbers for each state: the total population as determined by the 2020 census; and the total population excluding, “to the extent practicable,” unauthorized immigrants. The second total would then become the “base” that Congress uses to divide up the seats in the House. Using a population base that excludes unauthorized immigrants could cause states with large immigrant populations to lose House seats while states with small immigrant populations gain seats.

Trump’s memorandum prompted two different sets of challengers – a group of state and local governments, led by New York, and a group of nonprofits that work with immigrant communities – to go to court, arguing that the memorandum violated the Constitution and federal law. A special three-judge district court barred Ross from including the information needed to implement the memorandum in his end-of-year report to the president; the Supreme Court then agreed to fast-track the Trump administration’s appeal this fall.

The court’s opinion

In an unsigned opinion, the majority explained that the challengers’ case is “riddled with contingencies and speculation that impede judicial review.” Although Trump wants to exclude unauthorized immigrants from the base, the majority reasoned, it is not certain, as a practical matter, whether the federal government will be able to do so without having to resort to estimates – which the Constitution does not allow. A 2019 Supreme Court ruling in an earlier census case prevented the Trump administration from including a citizenship question on the census, and so any attempt to exclude unauthorized immigrants from the reapportionment calculation would be based largely on non-census data. At the Nov. 30 oral argument, Acting Solicitor General Jeffrey Wall told the justices that, as of that morning, officials at the Census Bureau “still don’t know even roughly how many illegal aliens it’ll be able to identify, let alone how their number and geographic concentration might affect apportionment.”

The majority pointed to that uncertainty in declining to rule on the legality of Trump’s plan. Although there is wide agreement that the Trump administration “cannot feasibly implement the memorandum” by excluding everyone who is in the United States illegally, the majority emphasized that it is still unclear which unauthorized immigrants the president would ultimately exclude from the base, or what the effects of those exclusions might be. As a result, the challengers have not yet suffered any real harm, the majority added: The district court’s order “reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future.”

“At the end of the day,” the majority concluded, the uncertainty surrounding the challenge indicates that it is too soon for the courts to act. The majority made clear that it was not weighing in on the merits of the challengers’ claims, instead holding “only that they are not suitable for adjudication at this time.” That leaves the door open for any state that ends up losing congressional representation as a result of Trump’s plan to return to court at the end of the reapportionment process.

The liberal justices’ dissent

In a 20-page opinion by Justice Stephen Breyer that was joined by Justices Sonia Sotomayor and Elena Kagan, the dissenters stressed that the Trump administration had conceded that it plans to implement the memorandum if possible and that, if it does so, the challengers will be harmed. “Under a straightforward application” of the court’s cases, Breyer contended, the challengers therefore have a legal right to sue now.

Moreover, Breyer added, he would rule for the challengers on the merits of their claims, because the memorandum violates federal laws governing the operation of the census. Among other things, Breyer noted, federal law requires the apportionment base to include the “whole number of persons in each state.” “The usual meaning of ‘persons,’ of course,” Breyer wrote, “includes aliens without lawful status.” Breyer also emphasized that the census has never “excluded people based solely on immigration status,” instead looking to an individual’s place of residence to determine whether to count him or her.

Breyer finished by observing that Congress in 1929 had enacted laws governing the census in an effort to “cabin discretion and remove opportunities for political gamesmanship.” “History shows that, all things considered, that approach has served us well. Departing from the text is an open invitation to use discretion to increase an electoral advantage.”

Ross’ report to the president is due by the end of 2020; the president is required to send his state-by-state breakdown to Congress by Jan. 10, just 10 days before he leaves office. If Trump goes forward with his plan, the justices may be grappling with these issues again in 2021.

This post was originally published at Howe on the Court.


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Posted in Trump v. New York, Featured, Merits Cases

Recommended Citation: Amy Howe, Opinion analysis: Court tosses challenge to Trump’s plan to exclude unauthorized immigrants from congressional reapportionment, SCOTUSblog (Dec. 18, 2020, 2:00 PM),

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