WASHINGTON–The U.S. Supreme Court has ordered parties to brief the Court by 5 p.m. on October 7 on jurisdictional issues surrounding President Trump’s July 21 memorandum to Secretary of Commerce Wilbur Ross to include a state-by-state breakout of the number of illegal aliens counted in the 2020 Census.
The report from the Secretary to the President is due December 31, and the President must in turn submit a report to Congress no later than January 10, 2021. That report must state, at a minimum, the total population of each state in addition to the number of Representatives each state is entitled to.
The issue before the Supreme Court is whether the September 10 decision of the District Court for the Southern District of New York that prohibited the Secretary from following President Trump’s memorandum is incorrect and should be summarily overturned by the Supreme Court or stayed until a full hearing can be held.
Shortly after the President issued his memorandum, a large group of states, cities, counties and other parties, including New York State, sued to censor the Secretary of Commerce as to what information he is legally empowered to report to the President.
The three-judge panel of the District Court in part concluded that the President does not have, “discretion to exclude illegal aliens on the basis of their legal status, without regard for their residency.”
The Trump administration, in the memorandum says, “It is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended, to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
The memorandum goes on to say, “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”
This legal action is part and parcel of Trump’s attempt to place a citizenship question on the Census form itself. In June 2019 the Supreme Court ruled that Secretary Ross improperly decided to add a citizenship question to the Census form. There was insufficient time for Ross to correct the administrative record so that the question could be added, so the forms were printed without it.
The high court did not say the question itself would be illegal.
Justice Roberts, who wrote the opinion, pointed out Congress’s wide authority over the Census and the fact that they have already delegated much of that power to the Secretary of Commerce. The ruling addressed the Administrative Procedures Act and how the Secretary is required to justify his decisions in writing, something the Court found inadequate.
However, the Census has for a long time collected much more information than a simple enumeration of persons in the country. Demographic and other information collected by the Census, as well as data from other reliable records are used when allocating federal funds among the states.
Secretary Ross was directed by the memorandum to use whatever “high quality” data is available within the federal system to determine as best as possible how many illegal aliens are here.
The plaintiffs are trying to prevent the use of any information other than the raw number of persons counted for the apportionment report.
The stakes are high. Representation in the House of Representatives is determined by the numbers reported to Congress by the President, and substantial numbers of illegal aliens, if counted for apportionment of Representatives, could advantage those states with high numbers of illegal aliens with more votes in the House.
It is estimated that there are more than 10 million illegal aliens in the country, and according to the Pew Research Center, as of 2016, “A majority of U.S. unauthorized immigrants live in just six states – including California (with the largest population at 2.2 million), Texas, Florida, New York, New Jersey and Illinois.”
Colorado, says the Pew report, had about 190,000 “unauthorized immigrants” as of 2016.
The Trump administration is seeking oral arguments in December.