If confirmed, Amy Coney Barrett's first major case as a Supreme Court Justice could very well be the Trump regime's plan to eliminate undocumented immigrants from the official Census count, which would almost certainly cost states like California, Illinois and New York multiple Congressional districts, as well as billions in yearly federal funding.
The Supreme Court announced Friday that it will review President Trump’s attempt to exclude undocumented immigrants when calculating how congressional seats are apportioned among the states.
The unprecedented proposal could have the effect of shifting both political power and billions of dollars in federal funds away from urban states with large immigrant populations and toward rural and more Republican interests.
A three-judge panel in New York said that Trump’s July 21 memorandum on the matter was “an unlawful exercise of the authority granted to” him by Congress. It blocked the Commerce Department and the Census Bureau from including information about the number of undocumented immigrants — it is unclear how those numbers would be generated — in their reports to the president after this year’s census is completed.
The justices put the case on a fast-track, and said they will hold a hearing Nov. 30. By then, it will likely be a nine-member court again, if Judge Amy Coney Barrett is confirmed, giving the court a 6 to 3 conservative majority. The administration says timing matters, because it must present the plan to Congress in January.
It is unclear whether the matter would divide the court along ideological lines, but the issue is another mark of how the once-a-decade census has been transformed from a largely bureaucratic exercise into the centerpiece of a partisan battle.
The Supreme Court earlier this week agreed with the Trump administration that it could stop the count of Americans, despite fears that the coronavirus and other problems will lead to an undercount of minorities and those in hard-to-reach communities. Lower courts had said the count should continue until the end of the month. But that might have made it heard to get the information to Trump by year’s end — a timetable that carries additional importance in an election year.
In 2019, the justices rejected the Trump administration’s plan to add a citizenship question to the census form, which experts said would discourage participation by both legal and undocumented immigrants. Chief Justice John G. Roberts Jr. wrote the 5-to-4 decision, saying the administration did not follow proper procedure for introducing the question, and that its rationale was “contrived.”
“President Trump has repeatedly tried — and failed — to weaponize the census for his attacks on immigrant communities,” said Dale Ho, director of the ACLU’s Voting Rights Project, which is a party to the litigation. “The Supreme Court rejected his attempt last year and should do so again. The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress.”
The latest controversy involves the constitutional mandate that apportionment of seats in the House of Representatives be based on the “whole number of persons in each State.” That has been interpreted to mean every resident, regardless of immigration status.
But this summer, Trump issued a memorandum that said, for the first time, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.”
Trump’s memorandum indicated he believed that some states would be getting more congressional seats than deserved — California was implied but not named — because of their numbers of undocumented residents.
Trump directed Commerce Secretary Wilbur Ross to provide him with two sets of numbers, one that includes unauthorized immigrants and one that does not, “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
Even the administration does not indicate how that would be accomplished, as the census does not ask about citizenship. “The Census Bureau is still evaluating the extent to which, as a practical matter, administrative records pertaining to immigration status can be used to identify and exclude illegal aliens from the apportionment population count,” acting solicitor general Jeffrey B. Wall said in a filing to the Supreme Court.
This is going to most likely be a disaster, and most likely with Barrett we will see five votes to eliminate more than a century of precedent. If this ruling is broad enough, it could all but require proof of citizenship for anything and everything that the government provides as a service or benefit. Even if the question remains limited to the Census, it will cost blue states as many as a dozen House seats, and any seats reapportioned during redistricting where Republicans control the process will almost certainly see Democratic districts eliminated completely.
In other words, it could completely remake the House, possibly tilting the House towards the GOP for a decade or more.
This is what actual judicial activism looks like.
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