The challengers have argued that Trump's plan could leave several million people uncounted and cause California, Texas and New Jersey to lose House seats.
On July 21, 2020, President Donald Trump issued a memo to the Secretary of Commerce, instructing him to submit information that would allow for a wholesale exclusion of individuals present in the country illegally from the apportionment calculation.
"As of this very morning, career experts at the Census Bureau confirmed with me that they still don't know, even roughly, how many illegal aliens they will be able to identify, let alone how their number and geographic concentration might affect apportionment", he said.
The Supreme Court heard arguments Monday in a case involving the Trump administration's desire to exclude undocumented immigrants from the census.
"Is that date still operative?" Why aren't we better advised to do that?' Roberts asked.
It appears unlikely that the bureau will produce an estimate by the December 31 statutory deadline for sending population totals to the White House.
'I would think you would be able to tell us whether that remains a realistic possibility at this point, ' Alito said.
Several conservative justices suggested that the better course for the court would be to avoid ruling immediately on lawsuits filed by NY and other Democrat-led states, as well as immigration advocates because Trump's intentions are speculative at this point.
The justices, who heard the arguments in Trump v.
Somewhat similarly, Justice Amy Coney Barrett remarked to Wall that "historical practice cuts against your position" and asked "if an undocumented person has been in this country for 20 years, why would that person not have a settled residency?"
But New York Solicitor General Barbara Underwood, opposing the administration, said that "the Framers wanted a system that could not easily be manipulated". The U.S. Constitution requires the apportionment of House seats to be based upon the "whole number of persons in each state".
Removing illegal immigrants from the census count is just one facet of Trump's strict immigration and foreign relations policies, which includes building the southern border wall and banning travel from certain Muslim-majority countries.
Also opposing the Trump policy was the American Civil Liberties Union's Dale Ho, representing immigrant rights groups.
But several justices referred to the difficulty of ruling after the fact, with federal and state governments up against tight deadlines to apportion seats in Congress and draw new district boundaries in time for the 2022 elections. Even something that sounds easy, such as counting those in ICE detention, is not so easy because some of those people are legal permanent residents, he added. We don't know what the effect of that would be on apportionment. The judges also said that "so long as they reside in the United States, illegal aliens qualify as "persons" in a "state" as Congress used those words". The Post reported, "Two key members of the court - Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh - said plainly during two hours of teleconferenced arguments that Congress's decision in 2017 to zero-out the penalty for not buying health insurance did not indicate a desire to kill the entire law." Oh.
Unspoken was what appeared to be on the minds of all the justices.
Since the first constitutionally mandated census in 1790, the federal government has sought to count everyone living in the USA on the appointed day - this decade, it was April 1, 2020 - regardless of citizenship status, with some reasonable carve-outs, such as foreign diplomats based here. And by then, Trump won't be president.
If the president's scheme is found to be lawful, California, Texas and Florida each might lose at least one seat (with more than 2 million migrants living in the state without authorization, California could lose up to three seats) to which they otherwise would be entitled, while Alabama, Minnesota and OH could each gain a seat. Critics said the question was meant to frighten immigrants from taking part in the population count and artificially reduce population numbers in heavily Democratic areas, also to benefit Republicans.
As Barbara D. Underwood, who as NY state's solicitor general argued on behalf of lower-level governments challenging the policy, told the court, Trump's memo "pretends that if under the law a person should not be here, then the person is not here".
"The president has at least some discretion to determine that at least some illegal aliens lack enduring ties to the states", Wall said.
Some justices suggested the court should possibly wait to rule until after the count is complete and apportionment of congressional seats comes into focus.
That process is likely to take place after Trump's presidency.