© Reuters. A man stands before the US Supreme Court in Washington
By Lawrence Hurley
WASHINGTON (Reuters) – The Supreme Court on Monday will take up President Donald Trump's unprecedented and controversial efforts to exclude illegal immigrants from the total population used to assign districts of the U.S. House of Representatives to states.
The challengers to Trump's July policy include various states led by New York, cities, counties, and immigrant rights groups. They have argued that the Republican president's move could leave millions of people untold and result in California, Texas, and New Jersey losing home seats, based on a state's population in a ten-year census.
The court, which has a Conservative majority of 6 to 3, including three Trump-appointed judges, is due to hear an 80-minute hearing via conference call.
Trump lost his offer for re-election on November 3rd. This case focuses on one of several political moves his administration must complete before Democratic-elect Joe Biden takes office on January 20.
The census is required by the US Constitution. The challengers argued that the constitution forbids Trump to exclude illegal immigrants from the population. The constitution requires that the division of house seats be based on "the total number of people in each state".
The challengers said Trump's plan, carried out as part of the government's responsibility to manage the 2020 census, also violates a federal law called the Census Act, which specifies how a census must be conducted.
They said Trump's plan would weaken the political power of states with large numbers of illegal immigrants, including the heavily democratic California, by counting down their true populations and taking away their seats in the House of Representatives. If California loses house districts, it would likely mean Democrats lose house seats, which benefits Trump's Republican counterparts.
An estimated 11 million immigrants live illegally in the United States. So far, the government counted all people regardless of their citizenship or immigration status.
"Everyone's always thought that," said Dale Ho, an attorney for the American Civil Liberties Union, which represents immigrant groups in this case.
Ho said he was optimistic that the court's Conservatives, who often extol the importance of interpreting laws as written, would see this as "a fairly straightforward case".
Trump's attorneys argued in court records that the president acted within his authority and that the challengers lacked the legal standing to take the case. Trump's government "has virtually unlimited discretion as to which enumeration data is used in each state for the purposes of ten-year census and distribution," wrote Attorney General Jeff Wall.
The court rules the case on an accelerated schedule, the decision of which is due before the end of the year. That would make it difficult for the incoming Biden administration to reconsider Trump's plan if it is confirmed.
Trump's tough stance on immigration has been a hallmark of his presidency.
The Supreme Court ruled 5-4 last year against Trump's efforts to add a citizenship issue to the census. Critics said the issue was designed to prevent immigrants from participating in the population and artificially reduce the population in highly democratic areas, which should also benefit Republicans.
Conservative Chief Justice John Roberts joined the Liberal justices in this decision. But the addition of Trump's third appointee Amy Coney Barrett to the court is changing its dynamic, as judges saw on Wednesday in a case they supported Christian and Jewish houses of worship that the recent New York state restrictions on novel coronaviruses in Question asked spots.
Roberts, along with the three liberals of the court, disagreed, but Barrett's vote in favor of the religious groups proved decisive.
LOWER COURTS BACK CHALLENGES
A three-judge panel in New York ruled the present case against the government in September, and the judges agreed to appeal on October 16. Federal courts in California and Maryland have come to the same conclusion on other cases, despite a court in Washington ruling for Trump.
The law requires the president to submit a report to Congress in early January with the population of each state and the authorized number of house districts.
Once states have assigned their districts, they themselves draw the boundaries for the districts to be used first in the 2022 congressional election. The number of house seats for each state also determines how many votes that state receives in the electoral college, the system used to determine the winner of the presidential election. In a tight election, one or two votes could influence the outcome.
The census itself does not collect data on a person's citizenship or immigration status. Trump's government would base its numbers on data gathered elsewhere. The US Census Bureau, a spokesman said, "will make public the methods used to provide state-level censuses once we have them completed."
Thomas Wolf, an attorney at New York University's Brennan Center for Justice, said it was not yet clear whether the administration could even come up with useful numbers.
"This is not the way to conduct a transparent constitutional democracy," added Wolf.
Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University in Virginia who filed a brief objection against Trump, said although the challengers have a strong argument, one wrinkle could be that some conservative judges have a broad view of the Represented the powers of the President.
"We can't say exactly what the judges will do with it," said Somin.
