Supreme Court to review Trump’s petition to exclude undocumented immigrants from Census tally

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President Trump’s effort to remove illegal immigrants from the tallies of the 2020 census is being given a fresh look from the Supreme Court.

The high court announced Friday that it will review Trump’s petition after a New York-based federal court blocked his order to not count undocumented immigrants in the final census tally used to determine the number of U.S. House allotted to each state.

The Supreme Court’s decision to review the lower court decision came days after it granted a request from the Trump administration to shorten the Oct. 31 deadline and end the census, which required every 10 years by the Constitution.

A three-judge panel of the Southern District of New York ruled last month that Trump’s order barring the inclusion of illegal immigrants in the tally to determine congressional seats was an “unlawful exercise of authority” by the president.

Trump had issued a memorandum in July stating that the “discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.”

“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,” Trump noted in the memorandum.

“Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated,” he explained.

Trump asked that the Census Bureau provide him with two sets of figures, one indicating the full tally of everyone counted and another excluding those in the country illegally. The second, smaller, figure would then be reported for reapportionment uses in Congress.

This would potentially affect the number of seats in the U.S. House of Representatives and federal funding, particularly for states with a higher immigrant population.

Lawsuits by advocacy groups and a group of 20 states, cities and local governments challenged Trump’s plan as lawsuits sprang up around the country. The three-judge court in New York, including U.S. Circuit Judge Richard Wesley, Circuit Judge Peter Hall and District Judge Jesse Furman, blocked the administration from receiving any information on the number of illegal immigrants in the report to the president from U.S. Secretary of Commerce Wilbur Ross.

“Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself,” the panel wrote in its opinion.

The Census Bureau had noted in its rules for the survey this year that the “resident population counts include all people (citizens and noncitizens) who are living in the United States at the time of the census.”

The Supreme Court’s decision to review Trump’s appeal on the lower court ruling came after the week’s confirmation hearings on the president’s nominee Amy Coney Barrett. The judge, nominated by Trump to fill the seat vacated by the late Justice Ruth Bader Ginsburg, may be able to participate in the high court’s review of the census case.

The Supreme Court has set a Nov. 30 date for arguments in the case.


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