The U.S. Supreme Court heard oral arguments on Monday in Trump v. New York over the president’s efforts to exclude illegal immigrants from the population totals used to determine the size of each state’s congressional delegation every 10 years.
Far from shedding light on what might finally transpire with the census, the hearing at the Supreme Court exposed the vast uncertainties that lie ahead.
“Career experts at the Census Bureau confirmed with me that they still don’t know even roughly how many illegal aliens they’ll be able to identify, let alone how their number and geographic concentration might affect apportionment,” acting Solicitor General Jeff Wall told the court.
Although there are estimates that a high number of illegal immigrants reside in California, Texas, Florida, and New York, Wall said that matching existing data on illegal immigrants to the data collected by the Census Bureau is a difficult task.
While cutting out the estimated 2.2 million and 1.6 million illegal immigrants from the census totals in the states of California and Texas, respectively, would undoubtedly result in lower congressional representation, it might hardly make a difference if the Census Bureau cannot match much data.
Furthermore, Wall said that aside from the bureau’s ability to parse out the data that the president has requested, it is unknown whether the president would follow through with excluding illegal immigrants from the data he sends to Congress.
Aside from those uncertainties, the timeline of the report to the president is also in question.
Statutorily, the commerce secretary is supposed to hand the census to the president at the end of the year and then the president sends it to the U.S. House of Representatives shortly after at the beginning of January.
But with coronavirus lockdowns across the country for much of the year, the timeline for the census has been up in the air.
The bureau requested an extension of the statutory deadline from Congress, but ultimately rescinded the request and aimed to meet the December 31 deadline.
However, a few weeks ago, the New York Times reported that three bureau officials said that the census would not be sent to the White House until January 26 at the earliest and possibly not until February.
The bureau itself has remained relatively quiet on the topic, only publishing a short statement asserting that “certain processing anomalies have been discovered” and that they were attempting to resolve the issues “as expeditiously as possible.”
During Monday’s hearing, Wall said that the department was “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 remain hopeful and it remains possible that we can get at least some of the [presidential memorandum related] data to the president in January,” said Wall.
While arguing that Trump’s memorandum was perfectly legal and constitutional, Wall asked the court to allow the department to carry out the request now and “allow any effect on apportionment to be litigated as it normally would be: in a post-apportionment lawsuit by parties with concrete injuries.”
Chief Justice John Roberts posed the same question to Dale Ho, an attorney with the American Civil Liberties Union (ACLU) arguing against Trump’s memorandum.
“What is the problem with post-apportionment litigation?” asked Roberts, noting that all of the unanswered questions surrounding the census “would be resolved if we wait until the apportionment takes place.”
How — and perhaps even if — the Supreme Court decides to weigh in on the case remains to be seen.
Regardless, the outcome of the situation could have a significant effect on Texas.
While Republicans may nationally benefit from Trump’s policy with the major left-leaning states of California and New York poised to lose more representation in Congress, representation in Texas is also on the line.
The population in the Lone Star State has grown to put it on track to pick up perhaps a few more seats in the House, but excluding illegal immigrants from the apportionment count could offset that gain.
Moreover, the delays to the census could lead to problems for the Texas legislature, which will have their own deadlines for the session next year.
Should the data be delayed in its delivery to the state lawmakers, a special session might be necessary for the new maps for the political districts in Texas to be redrawn before the next election.
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