The Independent View: Supreme Court Decides too Early to Review Trump's Census Plan

The Supreme Court, on Friday, Declined to Immediately Weigh-In on the Legality of Trump's Plans to Exclude Immigrants living in the Country without Legal Permission from the 2020 Census Figures used to Award States Seats in Congress and Federal Funds in 2021.

Finding that a Ruling on the Merits of the Case would be Premature, in a 6-3 Decision, set aside a Lower Court Order that had Blocked a Proclamation Trump issued in the Summer to Change the Apportionment Process for U.S. House of Representatives Districts and Funds Distrabution.

The Conservatives on the Court said the Case "is riddled with contingencies and speculation that impede judicial review," citing the Uncertainty over which Unauthorized Immigrants the Trump Administration will be able to Remove from the Apportionment Figures. "At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature," the Majority wrote in an Unsigned Opinion.

Justice Stephen Breyer, an Appointee of President Bill Clinton, declared Trump's Proposed Policy Unlawful in a Dissenting Opinion supported by the Two other Members of the Court's Liberal Wing, Justices Sonia Sotomayor and Elena Kagan.

While Friday's Ruling would allow Trump to continue his Plans, its Practical Impact is Limited as the Justice Department has Acknowledged it is "very unlikely" that Census Bureau Officials will be able to Identify and Remove All Unauthorized Immigrants from the Apportionment Calculations before the incoming Biden Administration takes Office. Becourse of Covid-19, the Count was Not Completed and the Census is having Data Problems with the Reported Count.

The U.S. Government has always Counted the Country's Residents, including Non-Citizens without Legal Status, for the Purposes of Allocating Congressional Seats. The 14th Amendment requires House Seats to be Awarded after the Government Counts "the whole number of persons in each State." The Constitutionally Mandated Process occurs every 10 years following the Census.

In his July Memo, Trump said that Counting Unauthorized Immigrants in Congressional Redistricting Undermined the "the principles of representative democracy" because it granted states "political influence" based on their Undocumented Residents. Without explicitly naming it, Trump cited California, which he Estimated would be Awarded Two or Three more House Seats due to its Undocumented Population, the Largest in the Country.

The Republican-appointed Court Majority said Trump's effort "may not prove feasible to implement in any manner whatsoever" because of the Uncertainty surrounding the Administrative Records the Government could Compile on Undocumented Immigrants before the December 31st Deadline the Commerce Department has to Send the Apportionment Numbers to the President, which the Census said it will miss this date.

In his Dissent, Breyer said that Waiting for Trump to Submit the Figures to Congress "risks needless and costly delays in apportionment." Breyer said he would have Ruled against Trump's Plan, noting that the Administration has said it has continued looking for ways to Exclude from the Apportionment Calculations certain Categories of Unauthorized Immigrants, including: U.S. Immigration and Customs Enforcement (ICE) Detainees; Young Adults Enrolled in the Obama-era Deferred Action for Childhood Arrivals (DACA) Program; and those with Final Deportation Orders.

Removing these Groups of People from the Redistricting Process, Breyer added, would have Tangible Implications on the Allocation of House Seats and Federal Funds to States. "Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed," Breyer wrote.

Breyer said Trump's Decree contradicted the Legal Requirement that "the Whole Number of Persons" in each State must be Counted for Congressional Apportionment Purposes. Some asks if there could be Two Lists, One for the State's Delegate Count and One for Apportionment.

The American Civil Liberties Unions (ACLU), one of the Groups that Challenged Trump's Apportionment Memo, Pledged to Sue the Government again if it moved Forward with its Plans to Omit Undocumented Immigrants from the Redistricting Process. "This ruling does not authorize President Trump's goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives. The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress," Dale Ho, the Lead ACLU Attorney in the Case, said in a Statement. "If this policy is ever actually implemented, we'll be right back in court challenging it."