Census

Trump Must Actually Exclude Undocumented Immigrants From the Census Before He Can Be Sued for Doing That, SCOTUS Rules

The Supreme Court dismissed a challenge to Trump's plans for being "premature" until the administration actually does what it says it plans to do.

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The Supreme Court won't stop the Trump administration from excluding undocumented immigrants in this year's census—at least not until the administration officially does it.

The high court on Friday dismissed a challenge that sought to prevent the White House from excluding undocumented immigrants in the final numbers that will be used to apportion congressional seats. In an unsigned opinion, the court said the Trump v. New York case was "premature" and that plaintiffs lacked standing to seek a legal remedy because the census has not yet been finalized.

"This case is riddled with contingencies and speculation that impede judicial review," the justices wrote. They noted that Trump "has made clear his desire" to exclude undocumented immigrants from the census, but that the court would have to wait until the plan was implemented before determining its constitutionality.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan filed a joint dissenting opinion arguing that the court should be able to rule on the merits of the case now, given the potential harms created if Trump moves ahead with implementing the changes.

"This fight isn't over," the American Civil Liberties Union, one of several groups involved in the lawsuit against the Trump administration, said in a statement. "If this policy is actually implemented, we'll see them right back in court."

Cutting undocumented immigrants out of the once-per-decade headcount of all Americans has important ramifications for the allocation of congressional seats and Electoral College votes, potentially shifting political power away from states that have larger immigrant populations. The U.S. Constitution requires only that the government count the "whole number of persons" every 10 years, and throughout history that has been interpreted to mean all people, including both citizens and noncitizens.

Until now. In July, Trump issued an executive order instructing the Commerce Department, which handles the census, to "exclude from the apportionment base aliens who are not in a lawful immigration status." In the order, Trump argued that states have a perverse incentive to ignore federal immigration laws because they gain more congressional seats and political influence by having larger populations of undocumented immigrants.

On three occasions, lower federal courts told the Trump administration that it wasn't allowed to exclude undocumented immigrants from the census.

Against that background, then, Friday's ruling at the Supreme Court is something of a win for Trump—one that opens the door to changing how congressional and Electoral College power is distributed, even if only just a crack.

"The President now has the green light to try his hand at manipulating the count, and the Supreme Court—and the other federal courts—can only intervene if he actually does it (or perhaps if he clarifies what he's going to do)," writes Thomas Wolf, a senior counsel and reapportionment expert for the Brennan Center, a nonprofit legal center.

Friday's ruling "leaves the door open for any state that ends up losing congressional representation as a result of Trump's plan to return to court at the end of the reapportionment process," writes SCOTUSblog's Amy Howe.

The right thing for the administration to do, of course, would be to drop this attempt at refusing to recognize the existence of individuals who are obviously residents of the United States and who are very much subject to the authority of the federal government. That, however, seems unlikely.

As the clock winds down on Trump's time in office, what happens with the final stages of the census could be one of the administration's most lasting impacts. Ten years' worth of congressional redistricting and the next two presidential elections could be influenced by what the Trump administration decides to do next—and by what happens when and if the Supreme Court revisits this matter in the near future.

NEXT: What a Frozen Cherry Pie Says About FDA Regulatory Foot-Dragging

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  1. Well shoot all Harris Biteme has to do is give blanket pardons make em citizens and count em up. Anyway I guarantee they will offer citizenship, a union card and democrat party membership to every illegal alien. That’s what you liberaltarians wanted right?

    And nothing bad ever happens again.

    1. If you knew anything about the subject you would be aware that the President cannot grant citizenship.

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    2. they will offer citizenship, a union card and democrat party membership to every illegal alien

      I’m pretty sure you’re being sarcastic, but would that really be the worst thing in the world? Wouldn’t you rather those people become full fledged citizens instead of basically existing as undocumented slaves to the rich and powerful? I’ve found that many at this website are very close-minded and seemingly afraid of change.
      Change. I get that we all fear change, but allowing those less fortunate to have a little taste of freedom, the thing both you and I hold so dear in our hearts, is what the American dream is all about. Share it. Live and let live. Human beings are human beings no matter what labels you put on them. I’m sick of the intolerant right oppressing immigrants and atheists and treating them (and us) as second-class citizens. If anything, Christians should be treated as second-class citizens for the atrocities they’ve committed and how they pretend to love thy neighbor, so long as that neighbor is white that is.

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      2. “…..’allowing’ those less fortunate……”

        Haha. The white guilt savior. “They” could never prosper without your virtuous empathy.

        Don’t call those countries shitholes tho!

      3. Thanks, Enlightened Atheist, for your words of tolerance and (dare we use a four-letter word?) “love”, even, for the poor and hard-working immigrants. We need a LOT more of that around here!

        However, Enlightened Atheist, I wish that you would enlighten me about atheism… Please read the below carefully, and with the kind of sympathy that you espouse, and let me know…

        About that them thar God v/s atheism v/s agnosticism thang…

        I used to wonder a lot, but I had my agnostic friends convince me that God, if He does exist, does NOT want us to worship Him, because He does not believe in Himself (He needs self-esteem counseling, I was told). If God doesn’t believe in Himself, then we obviously shouldn’t, either. I was left to wonder, well then, WHO in the Hell is qualified to give self-esteem counseling to God Himself?!?! Never got an answer…

        Then my devout atheist friends convinced me, that to get to Atheist Heaven, one had to NOT believe in God, and do that non-believing thing in JUST the EXACT right way… As for example, they’d say, “See, Madeline Murray O’Hair, SHE is the ONLY one who REALLY quite properly, understood EXACTLY how God does NOT believe in Himself, and only SHE in Her Divine (Anti-Divine?) Perfect Understanding, was fit to be “Ruptured” through the space-time vortex portal, straight to the Atheist Heaven that She deserved, and all the rest of us… Even the less-than-perfect atheists… Are “Left Behind” after the “Great Rupture”. And since Madeline Murray’s body was never found, I had to accept their argument, She was the PERFECT atheist, and only SHE, in Her Perfect Disbelief, had been Ruptured… Her and Her alone… to be continued…

        …BUT THEN THEY FOUND HER DEAD BODY!!! The arguments of my atheist friends were utterly crushed! I had just BARELY started to think that maybe they were correct! Now, I just dunno WHAT in blue blazes to think any more!!! What do y’all say, especially you atheists? PWEASE advise me, ah ams ignernt…

      4. Not enlightened at all, eh?

    3. Trick is that CCP Biden has to be president first.

      Constitution strikes again!

      1. Jesus LC… I hate to break it to you but it’s pretty much over for Trump.

        1. Not “pretty much” over. Over.

          He’ll be fortunate if he evades bankruptcy and incarceration.

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  2. He absolutely should exclude them. Obviously. The apportionment of representatives and federal monies should not include illegal aliens. If the courts want to reverse it later, then let them. Then make an amendment to get it changed permanently.

    1. Progtards disagree.

      This is why we need to thin out the progtard population.

    2. You can argue that it should be changed, but the constitution says everyone except Indians. So Trump is going to lose, sooner or later.

      1. Technically, cant a lot of central and south Americans be seen as indigenous, and thus “Indians?”

        A stretch, sure but that’s what they do.

        1. The exact quote is “the whole number of persons in each state, excluding Indians not taxed”

          “Indians not taxed” are those that have partial sovereignty by residing on reservations as members of officially recognized tribes.

          1. You have no idea what you are talking about.

            No AmerIndian considers themselves “partially sovereign”.

          2. NonAmericans are not considered “persons” under the constitution as far as appropriation for congress.

            Why would a visitor from Argentina get some political say in how Georgia works? They don’t. You have to swear by the constitution to get its protection and responsibilities.

            Its why the commies at unreason deserve none. They hate the constitution and seek to destroy America.

            1. For someone who calls himself “Love Constitution” you sure don’t give a f*ck about it when it inconveniences you.

  3. I’ll be damned. You mean whatever random shit Trump tweets out at three o’clock in the morning isn’t actually official policy? Who knew? Although I must say I’m rather alarmed that three justices seem to think that what Trump says he’s going to do is just as actionable as what he actually does.

    1. In the future, they’ll just assume the President (whoever it may be) was going to say something but just hadn’t gotten around to it, then rule against or for whatever they claimed it was.

  4. you lost bitch

  5. Trump argued that states have a perverse incentive to ignore federal immigration laws because they gain more congressional seats and political influence by having larger populations of undocumented immigrants

    He isn’t wrong.

    1. Nope. He is spot on.

    2. His comments are many times spot on and more often misconstrued. He just says out loud what polite society is thinking.

    3. No, but the Constitution says otherwise. Just as there are certain restrictions on firearms that would probably be sensible, but are foreclosed as unconstitutional.

      1. Where exactly does the constitution say states can ignore federal immigration laws?

      2. Article I, section 9 as of 1808 congress gets to regulate migrants. Furthermore, the constitution specifically excludes certain person from full apportionment for House districts. Indians that are untaxed, slaves….

        The lefties hate this decision so much they tried to not cover it for hours until the got their commie narrative in order.

      3. There are no sensible restrictions which are unconstitutional.

  6. The right thing for the administration to do, of course, would be to drop this attempt at refusing to recognize the existence of individuals who are obviously residents of the United States and who are very much subject to the authority of the federal government.

    A libertarian talking about government and “the right thing to do” ?

    1. Boehm is an imbecile. He’s also very wrong. Open borders fanatics always are.

      1. SCOTUS refused to hear election challenges based on “standing” Reason applauds. SCOTUS refuses to hear census challenge based on “standing” Reason cries.

        1. It’s the Reason unlibertarian way.

        2. I actually hate that in both cases. They should have addressed the merits of Trump’s suit rather than denying it before the election because no harm had yet occurred and after because it was too late. That is pure bs. The issue of standing is also a cop-out to avoid making a decision they’ll be criticized for.
          Regarding the census, I do prefer that they punt and allow Trump to do the logical thing and only count citizens towards appointment. Still, the pending action requires an answer on Constitutional grounds. Essentially the entire purpose of the SC is to interpret the US Constitution when questions about it arise. Failing to do so seems like a dereliction of duty

          1. The SCOTUS can’t address every question just because it “arises”. It’s a court, not an advice column. They need an actual case that’s based on something that actually happened, not something the plaintiffs fear might happen.

    2. I want to know how exactly getting a count of a population does anything to them directly. They may take actions based on possibilities, but that isn’t the count. Other agencies may take action based on the count and that would be appropriate to fight against, but the count itself actually recognizes their existence instead of denying it as Boehm claims.

  7. Then after he excludes them the court can claim laches like in Pennsylvania.

  8. As the clock winds down on Trump’s time in office,

    See all you Reason writers are completely deranged about Trump. The clock isn’t winding down. It is winding up. And is about to embark on the yuoojest biggest second term in the history of all presidents. But because you writers were paid off by China Bidet Venezuela commie shit holes and rapists, you are just shilling for traitors who want to kill what made America grate.

    1. This is the kind of bullshit post that makes it so that nobody can can tell all you jeffy’s apart.

      Good news is, with the deregulation, your mom can now get a frozen cherry pie with a cookie crust, so you won’t generate 2 plates for her to wash.

      1. Hahaha. Poor unreason.

        They took 5+ hours to compose their sorry asses and sent in bottom of the tear barrel Boehm to spew out some commie propaganda.

      2. Hey stupid Mormon! This might be hard for your stupid ass to understand but the non far right loons who post here aren’t socks and are different people.
        You see Biden got 7 million more votes than Trump, so there are more non-far-right-wannabe-fascists than far-right-wannabe-fascists.
        So it’s reasonable that there’d be a few left of eating Trump’s asshole commenters on this site. I know I’ve never made a 2nd account. It seems sock, TDS, and secret reason writer account are popular ad hominems on here. I’m pretty goddamn sure the reason writers give two fucks what the inbred commenters think.
        Just wanted to point out that calling someone a jeffy or Sqrls only makes you look even more stupid.

        Stupid goddamn fascist Mormon.

  9. When the Democrats think of illegal immigrants they think of only one thing: More power for them. What they don’t think about: how will this affect the people who are already living here and not doing that great? Their answer: WHO CARES?

    1. Slaves….illegal immigrants- whats the difference.

      The democrat party is the party of slavery and they live it every day.

      1. Yes they are. One giant cesspool of gender identity, racial profiling, and card carrying victimhood with zero ability to do or say anything that doesn’t involve ensnaring everyone they can in the idea that they should depend on the largesse of the government for everything from their first breath to their last. Anyone who disagrees: REBELS.

  10. The right thing for the administration to do, of course, would be to drop this attempt at refusing to recognize the existence of individuals who are obviously residents of the United States and who are very much subject to the authority of the federal government do this at the last possible moment.

  11. Shikha hardest hit.

    1. Well Reason dumped her because on their TDS meter she registered an 11 when the potentiometer was only calibrated to 10. The machine is toast now because you can’t even buy those old pots anymore. Sullum has probably hit 12 in the last week alone but we’ll never know for sure. Totally unfair and sexist and racist as well. And on top of that this devastating blow. It is rumored, though not yet verified, that there is an actual number of individuals who have actually read Ms. Dhalmia’s plaintive bleatings and not scrolled straight to the comments. Hopefully they will support Shikha in her time of need.

      1. Pulse width modulation FTW

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  13. I think this was a good call by SCOTUS. The reality is that Trump is not really doing anything these days and he is unlikely to get around to doing anything. Better to play golf, watch TV and plan his 2024 come back. Can’t waste time on Russian cyber hacks, vaccine distribution, or the census.

    1. “Russian”

      Eat a bullet, leftist

    2. Hahaha. Lefties have been shitting themselves for 4 years because trump. Now 4 more years of trump as president is no big deal? Hahaha

  14. https://twitter.com/DanODonnellShow/status/1340132763740073984?s=19

    Black Lives Matter goons are currently at Candy Cane Lane in the Milwaukee area and are terrorizing people who have come to look at the lights in a child cancer fundraiser. Yes, Black Lives Matter goons are actually terrorizing a child cancer fundraiser.

    1. Are the children dying of cancer privileged? Because if so they deserve it.

  15. Another million poor people from central America will likely caravan to the US border during the next year, prompting left wing media outlets to claim there is a massive humanitarian crises at the border, which will convince Biden to let them all in and offer them free housing, education, healthcare and a Democrat party membership.

    Charles Koch and Reason will be pleased, but libertarians not so much.

    1. It was going to cost rich Uncle Charles billions moving operations to where the slave labour was. Now it’s importing itself for free. Win-win.

      1. Slave labor. Does that include Canada?

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  17. Ya know; Tourists are, “subject to the authority of the federal government” while in the USA. Shall we all promote a tourist invasion just before the census is done so state’s can grab more UNETHICALLY proportioned electoral and congress chairs???

    Heck why even promote tourism; just send the U.S. Government and it’s ballot box to Russia, China, U.K., EVERYWHERE because of the “commerce clause” and “treaty powers” and EVERYONE who trades with the USA can STUFF THE BOX TOO!!!!!

    It’s Complete B.S. to allow ILLEGAL and/or NON-CITIZENS representation in a U.S. Government and EVERYONE knows it.

    1. Apparently Eric doesn’t.

    2. Shall we make a compromise?

  18. I’ve lurked on the comment boards on Reason for a very long time. Typically I find the mix of opinions to be refreshing, but the left leaning people on this site would be a little left of the typical opinions spouted on Mother Jones. I’m all for open borders and allowing people to come here to make a living. That said we have a structure that will reapportion funds to areas that decide to use undocumented immigrants to get a bigger piece of the federal pie. Open borders while great in concept don’t work when you build a large federal social welfare state. Non citizens have no legal responsibility to our country nor we to them.

    As libertarian leaning people shouldn’t our goal be to have more open borders with less forced redistribution? Couldn’t we handle paying for the undocumented poor via private charity and individual giving rather than redistributing the nation’s resources based upon bad local policy?

    1. If you give people work and residency permits they can get legit jobs. Those come with taxes like anyone else. Except FICA which they still need to pay although they do not collect SS or Medicare without a social security number.

      By keeping people in a status where they cannot just get a regular job you create an underground economy. They do not pay into the system at all. Most are here to work. Let them.

      Then you can deal with those who show up at the border in a more rational efficient way. Should be not much harder than getting a drivers license.

      A path to citizenship could be established.

      What we have now is wasteful and inefficient. The politicians have kicked this can down the road for decades.

    2. Libertarians are fine with rule of law.

      The constitution gives congress the power to regulate immigration and they do. The executive branch enforces those laws.

      The congress sets forth who is counted in the census and non-americans are counted less than Americans or not at all.

      Democrats never have the constitution on their side.

  19. Hahha. Commies at unreason were told about this great Trump win in the SCOtUS days ago and this the stupid boehm nonsense they come up with?

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  21. “The U.S. Constitution requires only that the government count the “whole number of persons” every 10 years, and throughout history that has been interpreted to mean all people, including both citizens and noncitizens.”

    Stop being a marxist any time. Just because persons means something different to you now doesn’t mean that understanding applied in the past. Tourists, illegal immigrants, natives, etc. were never counted nor ever should be. It is horrible policy and voter suppression to count non-citizens towards representation. They have home countries to return to if they don’t like the political results; we don’t.

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