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SCOTUS Will Decide If Trump Can Exclude Immigrants Without Legal Status From Census Count

The United States Supreme Court photographed November 30, 2020. (Chip Somodevilla/Getty Images)
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What's at stake for Southern California in the 2020 Census? Billions of dollars in federal funding for things like health care, public education, even disaster planning. Political representation in Sacramento and D.C. A census undercount could cut critical resources in L.A. County, home to the largest hard-to-count population in the nation.

The U.S. Supreme Court heard arguments Monday to decide whether President Trump can exclude immigrants without legal status from the population count used for political reapportionment, the calculation that divides up seats in Congress according to census data.

Political experts predict that California, home to an estimated two million such immigrants, would lose the most representation of any state under this proposed policy, which the president outlined in a memo this summer.

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In oral arguments Monday, the plaintiffs suing the government, which include a mix of states, counties and cities, pointed to the U.S. Constitution requiring the “whole number of persons” in each state to be included in the census numbers — regardless of citizenship.

“The framers wanted a system that could not easily be manipulated,” New York Solicitor General Barbara Underwood argued virtually before the justices. “Our laws reflect a deliberate choice not to base apportionment on citizenship, voter eligibility or any other legal status.”

Historically, immigrants without legal status have been included in the reapportionment numbers. A lawyer for the government, acting U.S. Solicitor General Jeffrey Wall, conceded that was the case, but argued that this population of immigrants matters more now.

“The fact that you’ve got a fairly unbroken practice doesn’t mean it’s constitutionally compelled,” Wall said. “There’s nothing usual or settled about your residence if your presence is violating federal law.”

Wall is seeking to have the case delayed until January, after apportionment tallies are delivered to the president — including those with unauthorized immigrants removed. That would show the specific harm to certain states in terms of representatives lost.

There’s also the possibility that apportionment might not be produced until after President Trump leaves office. Then, the authority to check the numbers would fall into the hands of President-elect Joe Biden.

The justices seemed to have mixed opinions on Wall’s idea about delaying the case. Chief Justice John Roberts wondered if it might leave the court to “unscramble the eggs.” Justice Amy Coney Barrett seemed inclined to wait to see how the Trump Administration manages a process for identifying and removing immigrants without legal status from the count.

“Maybe there’s no injury here because we’re not really sure what the contours of the decision would be?” Coney Barrett asked.

Loyola Law School Professor Justin Levitt acknowledged that California would have a lot to lose in terms of representation from the proposed policy.

“There would be a pretty grave injury to California if the president’s decision were durable.” Levitt told LAist. “But I don't think there’s any chance that it’s durable.”

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If the lawsuit is delayed until after Trump enacts his policy and subtracts people from the population count, Levitt expects that California officials could feel threatened, and the state become a bigger player in the legal battle. California Attorney General Xavier Becerra also sued the Trump Administration over the apportionment memo separately from New York and the other governments.

Ultimately, Levitt expects this debate to just be an annoyance for California, and not a serious threat to the state’s political power. The Supreme Court could release a ruling in the next several weeks.


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