WASHINGTON – President Donald Trump’s attempt to exclude people living illegally in the country from the population count used to divide congressional seats is heading towards a post-Thanksgiving Supreme Court showdown.
The administration’s top lawyers are hoping judges at a tribunal that includes three Trump-appointees will embrace the idea, repeatedly rejected by lower courts. This is the last and possibly the last sweeping immigration approach the Trump administration takes to reach the High Court. Disputes will take place by telephone on Monday due to the coronavirus pandemic.
Even as judges consider removing, for the first time, millions of non-citizens from the population count that determines how many seats each state gets in the House of Representatives as well as the allocation of certain federal funds, experts say more problems are looming. big for the 2020 census as it heads into uncharted territory when it comes to timelines, data quality and politics.
A host of new questions outside of the court’s final ruling could determine the final product of the country’s once-per-decade membership tally, including whether the new Biden administration would do anything to try to overturn decisions made under Trump.
Among other questions: Will the Census Bureau be able to meet an end-of-year deadline to return the numbers used for the allocation, the process of allocating seats in Congress among states? Will the quality of census data be affected by a shortened schedule, pandemic and natural disasters? Could a Democrat-controlled House reject Republican administration numbers if House leaders think they’re flawed? Will a lame Senate pass a bill that could extend the deadlines for transmitting census figures?
“There are so many moving parts that it makes your head spin,” said Margo Anderson, professor of history at the University of Wisconsin-Milwaukee.
How the Supreme Court will rule is the first unknown.
Federal courts in California, Maryland and New York have ruled that Trump’s plan violates federal law or the Constitution, which provides that “representatives will be divided among the various states according to their respective numbers, counting the total number of people in each state ”. A fourth court, in Washington, DC, ruled last week that a similar challenge to the administration plan was premature, an argument that was also made in the High Court.
“What Trump wants to do would be a radical break with this. The losers would not be individuals. It would be entire states and communities that would lose their representation when undocumented members of those communities were excluded from the account used to allocate Houses, ”said Dale Ho, the attorney for the American Civil Liberties Union who will be advocating at the House. names of immigration advocates and civil rights groups in the Supreme Court case.
The administration argues that the constitution and federal law allow the president to exclude “illegal aliens” from the distribution account.
“As history, precedents, and structure indicate, the President need not treat all illegal aliens as ‘inhabitants’ of states and thus allow their disregard for federal law to skew the distribution. representatives of the people, ”wrote Acting Solicitor General Jeffrey Wall.
The administration estimates California could lose two to three House seats if people living illegally in the country were excluded based on what the administration said to be more than 2 million of those California residents. But Ho noted that a change in the distribution of seats in the House can result in much smaller numbers.
The Democratic-controlled House has weighed in to argue that Trump’s plan would result in an unfair distribution of seats for partisan political purposes, the latest attempt “to manipulate the census in new and disturbing ways.” The House presented the president’s plan as part of a larger effort that included a blocked attempt by the Supreme Court to add a citizenship question to the census for the first time in 70 years.
In order for the order to be fulfilled, dispatch number data processing will have to take place while Trump is still in office, but an announcement this month that anomalies were found in the data puts the ability of the Census at risk. Office to transmit figures. to the President by the December 31 deadline. Trump, in turn, is expected to deliver the numbers to Congress by Jan.10.
But if problems with the data dictate a delay of even three weeks, the Census Bureau would hand the numbers over to a new president. President-elect Joe Biden takes office on January 20.
“The Biden administration will need to see what kind of damage the Trump administration has left with the reorganization and determine whether an accurate tally, including all people regardless of nationality, can be used,” said Jeffrey Wice, assistant professor at the New York Law School. is an expert in census law and redistribution.
A spokesperson for the Biden campaign did not respond to an email survey.
Even if everything is done on time, the House, which will remain under Democratic control next year, could reject the allocation figures on the grounds that they are not what Congress has asked the Republican administration to provide, has said Justin Levitt, professor at Loyola. Los Angeles Law School.
“If the president returns something that is not plausibly what he asked for, he does not have to accept it or pass it on to the states,” Levitt said.
The Census Bureau’s announcement of the anomalies also highlights concerns about the pandemic over data quality. The time allotted to correct errors and fill gaps in data collection has been cut in half by the administration’s decision to stick to the year-end deadline and respect the order of distribution of Trump. The Census Bureau has also faced challenges related to wildfires in the west and hurricanes along the Gulf Coast.
There is still a chance that the Senate will allay some concerns by agreeing with the House on an extension for the transfer of the population. As the coronavirus spread in the spring, the Census Bureau asked Congress for an extension until the end of April 2021. The House complied, but the legislation went nowhere in the Senate controlled by Republicans after Trump released his allocation order in July.
It is not out of the question that the Senate could still pass an extension, if the Supreme Court rejects Trump’s plan or if Democrats take control of the Senate after two polls in Georgia in January.
One thing seems likely: The current lawsuit won’t be the last legal fight over the 2020 census. The final allocation numbers have been disputed frequently over the past decades.
“What would a census be without a lot of litigation? Said Terri Ann Lowenthal, a former congressional assistant specializing in census matters.