At the U.S. Supreme Court Monday, skeptical justices questioned the Trump administration's lawyer over a plan to exclude undocumented immigrants from the census - the first time unauthorized immigrants would not be counted for purposes of drawing new congressional districts.
The court, which has a 6-3 conservative majority including three justices appointed by Trump, was hearing a scheduled 80-minute argument by teleconference.
In July, with the census underway, Trump issued a directive to exclude the country's estimated 10 million undocumented immigrants from the count determining the number of House seats. If we wait, asked Chief Justice John Roberts, wouldn't that be like "unscrambling the egg"? It will be hard for those elected president Joe Biden To reconsider it if Trump's plan is confirmed.
Several Democrat-led states, including NY, which has a large number of immigrants, have challenged the change and have been victorious in lower courts. They argued that the Republican president's move would count millions of people and that California, Texas and New Jersey would lose seats in the U.S. House of Representatives.
Lawyers for the challengers urged the court not to toss out the lawsuit now, asking the justices to wait for a few weeks until more information is available on what data the Census Bureau intends to submit to the president.
Forcing the states and civil rights groups to litigate the census post-apportionment could run into redistricting deadlines.
No president has tried to do what Trump outlined in a memo in July - remove millions of noncitizens from the once-a-decade head count of the US population that determines how many seats each state gets in the House of Representatives, as well as the allocation of some federal funding.
While questioning Acting Solicitor General Jeffrey Wall, Justice Samuel Alito said excluding all the illegal immigrants present in the United States "seems to me a monumental task".
Since the country's founding, all residents, regardless of immigration status, have been counted. The Constitution requires that the apportionment of House seats be based upon the "whole number of persons in each state".
Even if the administration can exclude some groups of immigrants, such as those held in detention, it may not be enough to alter apportionment, Wall conceded.
The challengers said Trump's plan, undertaken as part of the government's responsibility to administer the 2020 census, also violates a federal law called the Census Act that outlines how a census must be conducted. Trump's attorneys said in court documents that he acted within his authority and did not have the legal standing challenges needed to bring the case to light.
The justices wrestled with whether it is premature for the court to rule now when it is not clear whether the administration will be able to implement its plan.
"I would think you would be able to tell us whether that remains a realistic possibility at this point", he said. Barrett also challenged Wall on the government's position that an immigrant in the country illegally can not be considered an inhabitant for the purposes of apportionment.
A three-panel judge of the Ninth Circuit Court rejected an appeal from the Trump administration concerning a lower court's ruling against its efforts. Federal courts in California and Maryland have reached the same conclusion in other cases though one court in Washington ruled for Trump.
The census itself does not gather data on a person's citizenship or immigration status. The Trump administration will base its numbers on data collected elsewhere, although it does not explain the methods used.
By law, the president is to send a report to Congress in early January with the population of each state and the number of their districts.