The New York case turns on a memorandum Trump issued in July, which provides that “for the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Thus, if Trump gets his way, undocumented immigrants will not be counted when House representation is doled out to each of the 50 states following the census.
About 10.6 million undocumented immigrants live in the United States, and nearly 20 percent live in California. So the nation’s largest blue state could lose as many as three House seats if Trump succeeds in his plans to cut these immigrants out of the apportionment count. (The Republican-leaning state of Texas could also be hit hard, but Texas’s Republican legislature is likely to draw gerrymandered maps that would impose the cost of any lost House seats on Democrats. California, by contrast, uses a bipartisan redistricting commission to draw legislative lines.)
Both Justices Brett Kavanaugh and Amy Coney Barrett appeared very skeptical of acting Solicitor General Jeff Wall’s attempt to defend Trump’s policy, which is unambiguously unconstitutional, during Monday’s oral arguments. Add in the three liberal justices, and that’s a majority of the Court that may be opposed to Trump’s policy. Only Justice Samuel Alito offered much of a defense of it, so it’s possible a ruling will be more lopsided than a 5-4 ruling.
Critics of conservative originalism have charged that it is just a fancy word used to reach conservative results and sanction discrimination. The Supreme Court’s blockbuster census case, Trump v. New York, which will be argued on Monday, will be a major test of whether there is a principled core to conservative originalism. It will help show whether the court’s conservatives are willing to follow the Constitution’s text and history where it leads.
Throughout his presidency, President Donald Trump has flouted the parts of the Constitution he does not like. Trump v. New York involves President Trump’s decision to disregard the federal government’s constitutional obligation to count all persons residing in the United States in apportioning representatives for Congress. On July 21, President Trump announced it would be the “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status,” disregarding the fact that the Constitution explicitly requires counting all persons in the apportionment base in order to ensure equal representation for all persons.
To get around the Constitution’s plain command to count all persons, the Trump administration makes the specious claim that “the Constitution does not specifically define which persons must be included in the apportionment base” and that the president has discretion to exclude all undocumented immigrants from the apportionment base on the theory that they are not truly inhabitants of the United States, even if they have lived here for many years. This argument deserves to be laughed out of court.
The core question in the case — who counts for purposes of congressional reapportionment — is fundamental and largely untested.The Constitution requires congressional districts to be apportioned “counting the whole number of persons in each state,” using information from the census. To that end, a federal law requires the president to send Congress a statement setting out the number of representatives to which each state is entitled after each decennial census. In the past, those statements have been based on a count of all residents.
Removing undocumented immigrants from the count would most likely have the effect of shifting seats to states that are older, whiter and typically more Republican.
The case before the court, Trump v. New York, No. 20-366, was brought by two sets of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations.