“Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status,” an unsigned opinion from the court’s majority read. “Yet the only evidence speaking to the predicted change in apportionment unrealistically assumes that the President will exclude the entire undocumented population.”
The court’s three Democratic appointees dissented, saying that the dispute is ripe for review, and that the court should declare now that Trump’s policy seeking to remove foreigners from the count violates the Constitution.
“The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Justice Stephen Breyer wrote, joined by both of the court’s other Democratic nominees, Justices Sonia Sotomayor and Elena Kagan. “The Government’s effort to remove them from the apportionment base is unlawful, and I believe this Court should say so.”
The Census Bureau’s ability to produce the data needed to identify classes of immigrants who could potentially be excluded in time for the Trump administration to take such action remains unclear. President-elect Joe Biden’s administration is expected to shelve that effort if it isn’t complete by the time Biden is sworn in.
The court’s majority wrote that “judicial resolution of this dispute is premature,” raising questions of the standing of the challengers and noting that the case is “not ripe,” remanding the case to a lower court for dismissal.
Pointedly, the court’s controlling opinion notes that “we express no view on the merits of the constitutional and related statutory claims presented.” During oral arguments last month, several conservative justices struck a skeptical tone of the legality of excluding all undocumented immigrants, but were hesitant to weigh in on the case.
Dale Ho, the director of the ACLU’s voting rights project who argued the case for plaintiffs, said they were prepared to return to court should Trump actually try to implement his memorandum.
“This Supreme Court decision is only about timing, not the merits,” Ho said in a statement. “If this policy is ever actually implemented, we’ll be right back in court challenging it.”
The ruling comes at a tumultuous moment for the decennial count, which was upended by the pandemic. By law, the Census Bureau is supposed to deliver apportionment data to the president by the end of the year.
But the Census Bureau has publicly maintained that it may not be able to hit that timeline for months and would merely deliver the data that determines how many House seats each state gets for the next decade as soon as possible.
Acting Solicitor General Jeff Wall, who spoke for the Trump administration during oral arguments in this case late last month, said the Census Bureau would likely miss the deadline.
“The situation is fairly fluid,” Wall said. “We are not currently on pace to send the report to the president by the year-end statutory deadline. But just this morning I confirmed with senior leadership at the Department of Commerce and the Census Bureau that we are hopeful, and it remains possible that we can get at least some of the (presidential memorandum)-related data to the president in January.”
Earlier this month, the Democratic majority on the House Oversight Committee released documents that it said it obtained from a “source” that said the Census Bureau would be unable to deliver the data until Jan. 23, just days after President-elect Joe Biden is inaugurated.
In a statement, the Census Bureau did not deny the authenticity of the documents posted by the committee, but said the timeline is not certain yet.
“As the Director and senior career U.S. Census Bureau officials told members of Congress and Congressional staff…the estimated date that apportionment data will be complete remains in flux,” an unsigned statement from the Census Bureau read. “Internal tracking documents would not convey the uncertainty around projected dates and may fail to reflect the additional resources employed to correct data anomalies.”
The Commerce Department has been caught in a battle with the Oversight Committee over those documents. Rep. Carolyn Maloney (D-N.Y.), the chair of the committee, ultimately subpoenaed Commerce Secretary Wilbur Ross, demanding he release a “full and unredacted set” of documents related to a potential delay in the delivery of census data by Dec. 21.
A letter from Maloney dated Dec. 10 ripped Ross, saying his “approach to Congress’ oversight responsibilities has been abominable,” and that he is withholding documents preventing Congress and the GAO from doing its oversight of the census.
Neither the Commerce Department nor the Census Bureau has publicly given an update on the release schedule for census data since the Supreme Court’s oral arguments. At a Tuesday press briefing, Census Bureau officials said they would not take questions on when data would be released, or on ongoing litigation.
