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Supreme Court Dodges Trump's Plan To Exclude Undocumented Immigrants From Census


Today the U.S. Supreme Court dodged a direct ruling on President Trump's plan to exclude millions of undocumented immigrants from the 2020 census count. The count is used to determine how many seats each state gets in the House of Representatives and the Electoral College. But the decision does not give Trump a free hand. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In July, Trump ordered the Census Bureau to produce two sets of census numbers - one, a count of everyone living in each state, and a second set of numbers that subtracted all unlawful immigrants. That second number was to be the basis for allocating seats in the House and Electoral College. Lower courts ruled Trump's plan unconstitutional or illegal under federal statutes or both. Today the Supreme Court, by a 6-to-3 vote, said it would be, quote, "premature" to rule on the case right now because it's riddled with so many contingencies and so much speculation that even the Trump administration itself doesn't seem to know what it's doing. Here, for example, is Solicitor General Jeffrey Wall representing the administration at the oral argument just 18 days ago.


JEFFREY WALL: As of this very morning, career experts at the Census Bureau confirmed with me that they still don't know even roughly how many illegal aliens they will be able to identify, let alone how their number and geographic concentration might affect apportionment.

TOTENBERG: If that's still the case, and reporting by NPR and other news organizations say it is, there very likely is not time for the administration to come up with a defensible way to carry out its plan. The ACLU's Dale Ho, who argued on behalf of immigrant rights groups in the Supreme Court, says that if the administration still tries to ram through its plan...

DALE HO: I think if the administration goes forward with this, we'll be able to win this case.

TOTENBERG: In fact, at oral argument, many of the court's conservatives signaled an unwillingness to buy the administration's arguments on the merits. Trump's newest appointee to the court, Amy Coney Barrett, noted that reapportionment has never excluded residents of a state because of their immigration status. Here she is addressing Solicitor General Wall.


AMY CONEY BARRETT: A lot of the historical evidence and the long-standing practice really cuts against your position.

TOTENBERG: While today's opinion for the court majority was unsigned, Chief Justice John Roberts almost certainly was the author and signaled the outcome at the oral arguments.


JOHN ROBERTS: We don't know what the president is going to do. We don't know how many aliens will be excluded. We don't know what the effect of that will be on apportionment.

TOTENBERG: So why, asked the chief justice, aren't we better advised to wait? And wait is what the court decided to do, declaring the case not ripe for resolution. The three liberal justices dissented. Writing for them, Justice Stephen Breyer noted that Trump's memorandum straightforwardly states his purpose, namely to take away congressional seats from mainly-Democratic states that are home to many unauthorized immigrants. The harm is clear on the face of the policy, Breyer said, and it is therefore unlawful.

What happens next is murky. Census Bureau officials have indicated that because of the pandemic, they likely will not be able to meet the December 31 deadline for submitting their report to the president. But even if Trump does get the figures in time and does send them to the House, as required by law, the clerk of the House, if she chooses, may decline to accept them as unreliable, kicking them back to the new Biden administration for completion. That's never happened before, but Trump's norm-busting attempt to delete unlawful immigrants from the census could provoke another first. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.