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In Trump’s push to exclude immigrants from the census count, the Supreme Court hints it will move cautiously

November 30, 2020, 6:50 PM UTC

The U.S. Supreme Court seemed unlikely to issue an immediate decision blocking President Trump’s push to exclude undocumented immigrants from the census, as key justices suggested they wanted to wait to see what the impact would be.

In an 80-minute telephone argument session on Monday, the justices suggested they will move cautiously in a case that could affect the allocation of congressional seats and federal dollars. The Trump administration is in a race to finish the count, and submit the report to Congress, before President-elect Joe Biden takes over the presidency on Jan. 20.

Acting U.S. Solicitor General Jeffrey Wall told the justices the administration is now trying to identify categories of people who might be excluded, such as those now in federal detention, rather than aiming to omit the estimated 10.5 million people who are in the country illegally. Wall said it wasn’t clear that effort would have any impact on the allocation of congressional seats, making an argument that resonated with some justices.

“Doesn’t that cut in favor of waiting, that maybe there’s no injury here because we’re not really sure what the contours of the decision would be?” Justice Amy Coney Barrett asked.

Three lower courts have said the administration is violating either federal law or the Constitution by trying to exclude undocumented immigrants. Critics say Trump is trying to manipulate the census numbers at the expense of Democratic-leaning areas with high immigrant populations. The push could mean fewer seats for Texas, California and possibly New York and New Jersey.

Trump is seeking to change more than 200 years of practice in a nation that has always counted non-citizen residents, even those in the U.S. illegally. The case marks the last major immigration showdown at the Supreme Court for Trump after a presidential term marked by divisive legal fights.

The challenge is just one of several hurdles Trump will have to overcome to accomplish his goal. With the pandemic slowing the count, Census Bureau officials have told the Commerce Department they can’t produce the state population totals until after Trump leaves office, according to a New York Times report. And even if Trump can send Congress the numbers, lawmakers could still reject the tally, and Biden might be able to submit a revised report after he becomes president.

The president is defending his July 21 memorandum, which made it administration policy to exclude undocumented immigrants from the count. The memo tells the commerce secretary to send the president a tally that excludes that group, along with a separate set of numbers showing the total population.

The high court could decide the case on procedural grounds, leaving open the possibility of another challenge later. Trump contends that opponents don’t currently have “standing” to challenge the plan because they lack a concrete stake in the outcome.

The court has put the case on a fast track, making a ruling possible by the end of the year.