Court fast-tracks census appeal

[Elderberry]

SCOTUSblog by Amy Howe 10/16/2020

The Supreme Court announced on Friday afternoon that it would expedite an appeal by the Trump administration in a dispute over the administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown of the population for use in the allocation of seats in the House of Representatives. The justices will hear oral argument in Trump v. New York on Nov. 30, just over one month before a report by the secretary of commerce containing that information is required to go to the president. Barring some unforeseen development, the court is likely to be operating with all nine members again by then, with Judge Amy Coney Barrett expected to be confirmed to succeed Justice Ruth Bader Ginsburg in the next few weeks.

Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.

A three-judge district court issued an order on Sept. 10 that blocked the Trump administration from implementing the memorandum. The district court agreed with the challengers that, by requiring seats in the House to be allocated based on something other than “the results of the census alone,” the memorandum violates federal law. Moreover, the court added, the president does not have the “discretion to exclude illegal aliens on the basis of their legal status, without regard for their residency.”

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