Supreme Court to review Trump’s plan to exclude unauthorized immigrants from count used to award House seats

The U.S. Supreme Court agreed on Friday to weigh in on the Trump administration’s unprecedented bid to exclude unauthorized immigrants from the decennial federal count used to award states seats in the House of Representatives.

Granting a request made by Trump administration lawyers, the high court said it would hear oral arguments on the case on November 30, weeks after the presidential election but before the December 31 deadline for the president to receive a count of state populations that will be used for congressional apportionment.

After the arguments, the Supreme Court will determine whether to uphold or overturn a lower court order that has blocked the Trump administration from moving forward with its plans, which would upend decades of practice and have sweeping political ramifications. 

California, Texas and Florida would get fewer seats than expected in the House of Representatives if President Trump’s changes are instituted, while Alabama, Minnesota and Ohio would keep seats they would otherwise have lost, according to an analysis by the Pew Research Center, a non-partisan think tank.

The high court also had the option to affirm or vacate the lower court order from a three-judge panel in New York without agreeing to hold arguments. By the time the justices rule, the Supreme Court could have a 6-3 conservative supermajority if Mr. Trump’s nominee, Amy Coney Barrett, is confirmed by the Republican-led Senate. 

The constitutionally-mandated process to determine the number of House seats for each state occurs every 10 years after the census is taken.

Under federal law, the Secretary of Commerce, who oversees the U.S. Census Bureau, is required to provide the president a tabulation of each state’s population within nine months of the census date. The president is then mandated to provide Congress “a statement showing the whole number of persons in each State” 

The U.S. government has always counted both citizens and non-citizens, regardless of their immigration status, for the purposes of congressional apportionment. The U.S. Constitution decrees that every state must have at least one representative and that other seats in the House should be awarded based on an enumeration of the population.

Until the 14th Amendment was ratified in the 1860s, enslaved African Americans were counted as three-fifths of a person for the purposes of congressional apportionment. American Indians who were classified as “not taxed” were excluded until 1940. The 14th Amendment also requires representatives to be apportioned based on “the whole number of persons in each State.” 

In July, Mr. Trump issued an order to change this practice, arguing that because “persons” is not explicitly defined, he has the “authority to exclude from the apportionment base aliens who are not in a lawful immigration status.” 

A three-member panel of federal judges in New York rejected that argument in September, ruling that Mr. Trump’s proposed changes are unlawful.

“By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme,” the judges wrote. “Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.”

If the Supreme Court allows Mr. Trump to enforce his proclamation, it is unclear what methodology the administration would use to calculate figures of undocumented immigrants and then exclude them from the final tallies used for congressional apportionment. Last summer, the high court blocked the administration from adding a question on U.S. citizenship to the census questionnaires.

Representatives for the Justice and Commerce departments did not immediately respond to requests for comment.

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