Removing immigrants from the count would affect convention venues, federal foundations
By deducting millions of immigrants from the census, Trump hopes to shape the proportion of congressional seats, the distribution of billions in federal funds, and the contours of the nation’s election map for at least the next decade. If successful, for the first time in 230 years, the process will rule out large numbers of people in the United States
“A lot of historical evidence and long-standing practice is really contrary to your position,” Judge Amy Coney Barrett told Trump, attorney-at-law Jeffrey Wall, during the oral arguments.
“There is evidence that in the founding era, a resident was a resident who lives or lives in one place,” Barrett said. “If an undocumented person has been in the country for 20 years, even if illegally, as you say, why wouldn’t someone – such a person not have a permanent residence here?”
Wall argued that Trump has the discretion to exclude “at least some illegal aliens,” especially those who are not closely associated with the country, such as those who have recently been crossed across the border or others in ICE detention who have been deported. But Wall could not determine how Trump could draw the line or how many undocumented immigrants fall into each of the subcategories proposed by the administration.
Uncertainty was a challenge for the judiciary as they tried to come up with a solution.
“I find the posture of this case very annoying,” Judge Samuel Alito said. “It’s possible that we’re dealing with a very important opportunity. It’s possible that it’s very little in the sense. It depends on what the Census Bureau and the Department of Commerce can do.”
Some judges have suggested that the court may have to wait for a decision until the counting is completed and the distribution of seats in Congress is the focus.
“We don’t know what the president will do, how many strangers will be excluded. We don’t know what effect this would have on the distribution. All of these issues would be resolved if we waited for the distribution to happen,” said Chief Justice John Roberts.
Dale Ho, an ACLU lawyer who challenged Trump’s order, objected that “there is now at least a risk that the distribution will change,” which justifies the court’s immediate action.
“Couldn’t we replace a new policy,” Kavanaugh said, “by excluding a few subgroups (undocumented immigrants) and then suing about it and getting here soon?”
“Whether a particular policy is legal or not is another matter,” Ho replied.
Judges Breyer, Kagan, and Sotomayor suggested that a census count that clearly fully incorporates the text of the Constitution and Federal Law be prescribed for distribution purposes.
“The census says‘ where do you live, ’” Sotomayor said, “I don’t know how to identify immigrant classes who don’t live here in the traditional sense. Here they are. “
Barbara Underwood, a lawyer general in New York, agreed.
“You can’t declare them missing,” she said of undocumented immigrants. “Their status without documentation does not remove their presence.”
New York is one of 20 states that will ask the court for a quick decision before Trump passes its division report to Congress in early January, according to law.
“So the distribution is already underway,” Sotomayor said of the fast-paced schedule. “We should break the egg,” if the court waits.