Supreme Court will hear Trump appeal to exclude undocumented immigrants from census count

President Donald J. Trump hosts a Make America Great event in Greenville, NC United States on October 15, 2020.

Peter Zay | Anadolu Agency | Getty Images

The Supreme Court said Friday that it will hear arguments on Nov. 30 on an appeal by the Trump administration that seeks to exclude the tally of undocumented immigrants in the United States from the census data used to calculate the apportionment of congressional districts.

The order came three days after the Supreme Court issued a decision that allowed the Trump administration to end field operations for the 2020 census effective that day, even as the 9th Circuit Court of Appeals still considers a pending appeal that seeks to extend the count.

If the Trump administration wins the appeal regarding undocumented immigrants, states with relatively large numbers of such immigrants could lose seats in the House of Representatives.

A federal appeals court in Manhattan in September blocked the administration from excluding undocumented residents from the count determining congressional apportionment, two months after President Donald Trump announced his plan to do so.

The appeals court noted in its ruling that throughout American history, the census tally of people in each state used to determine how many seats a state gets in the House of Representatives has "included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without."

The appeals court noted that Trump's own memorandum outlining the new plan identified a state, believed to be California, "that would stand to lose two or three seats in the House of Representatives if illegal aliens are excluded from the apportionment base."

A group of 22 states, the District of Columbia and 15 cities and counties, as well as the United States Conference of Mayors and a number of nongovernmental organizations had challenged the Trump administration on the plan.

The appeals court agreed that Trump exceeded his authority under the census law.

That law, the court noted, requires the secretary of Commerce to report a single set of numbers — the tally of the total population of the United States — to the president, who is in turn "required to use the same set of numbers in connection with apportionment."

"By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme," the appeals court said.

"Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as 'persons in' a 'State' as Congress used those words."

The Supreme Court recently said it would continue hearing cases remotely due to the coronavirus pandemic for at least the rest of the calendar year.

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