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Three-Judge District Court: Trump Memo to Exclude Undocumented Immigrants from Census Apportionment Is ‘Unlawful’


WASHINGTON, DC - JUNE 24: U.S. President Donald Trump pauses while speaking during a joint news conference with Polish President Andrzej Duda in the Rose Garden of the White House on June 24, 2020 in Washington, DC. Duda, who faces a tight re-election contest in four days, is Trump's first world leader visit from overseas since the coronavirus pandemic began.

A rare three-judge district court panel unanimously decided on Thursday that President Donald Trump’s attempt to exclude undocumented immigrants from the U.S. Census-based redistricting process is “unlawful.”

The court ruled that while there is “no dispute that the President has ‘accustomed supervisory powers over his executive officers'” and “thus retains some discretion in the conduct of the decennial census and resulting apportionment calculation,” President Trump did not act “within the boundaries” of the “authority that Congress has granted.” The court, therefore, declared the president’s memo unlawful:

The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects. First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary is mandated to report a single set of numbers — “[t]he tabulation of total population by States” under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme. Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.

On those bases, we declare the Presidential Memorandum to be an unlawful exercise of the authority granted to the President by statute and enjoin Defendants — but not the President himself — from including in the Secretary’s report to the President any information concerning the number of aliens in each State “who are not in a lawful immigration status under the Immigration and Nationality Act.” Presidential Memorandum, 85 Fed. Reg. at 44,680. Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself.

As Law&Crime previously reported, a trio of judges culled from the U.S. Court of Appeals for the Second Circuit and the U.S. District Court for the Southern District of New York (SDNY) heard oral arguments for and against President Trump’s July memo addressed to Secretary of Commerce Wilbur Ross. The memo directed Ross’s agency to exclude undocumented immigrants from the apportionment base following the 2020 Census.

Arguing for the Department of Justice (DOJ) was Assistant to the Solicitor General Sopan Joshi, who claimed that the government could not be sued over the guidance because the “undercounting” harm alleged by the plaintiffs–which include the State of New York and the American Civil Liberties Union (ACLU)–was merely speculative.

Circuit Judges Peter Hall and Richard Wesley (both George W. Bush appointees) along with District Judge Jesse Furman (who was appointed by Barack Obama) didn’t appear to be convinced by the administration’s arguments. Thursday is proof that this was an accurate interpretation of the judges’ view of the case.

The quirky three-judge district court designation means that a direct appeal to the conservative majority Supreme Court is in play. It’s anyone’s guess as to how the high court would rule, but it’s worth noting that SCOTUS has thrown a high-profile wrench into the Trump administration’s census policy goals in the past.

Legal observers saw the Thursday decision as a “big loss” for the administration.

New York Attorney General Letitia James (D), a Trump nemesis, said in a statement that the the president’s “repeated attempts to hinder, impair, and prejudice an accurate census and the subsequent apportionment have failed once again.”

“The courts have ruled in our favor on every census matter in the last two years and continually rejected President Trump’s unlawful efforts to manipulate the census for political purposes. We cannot allow the White House’s constant fearmongering and xenophobia to stop us from being counted,” James said. “We urge everyone to fill out the census, if they have not already, and we will continue to take every legal action available to ensure all communities are counted, all communities are properly represented, and all communities get the federal funding they need and deserve.”

Colin Kalmbacher contributed to this report.

[image via Drew Angerer/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.