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Trump’s Hardline Immigration Policies Loomed Large as Supreme Court Justices Considered Latest Census Question


WASHINGTON, DC - AUGUST 04: U.S. President Donald Trump participates in the swearing in of General Charles Q. Brown as the incoming Chief of Staff of the Air Force, in the Oval Office of the White House, August 4, 2020 in Washington, DC. (Photo by Doug Mills-Pool/Getty Images)

The Supreme Court held oral arguments Monday in the fast-tracked Trump v. New York, the latest case over whether multiple categories of individuals present in the United States unlawfully can be legally excluded from the census count for purposes of apportionment and federal funding.

Under federal law, the Secretary of Commerce must, by December 31, submit a “presidential memorandum” to the president. After that, the president will submit a report to Congress within seven days. Fifteen days later, the Clerk of the House of Representatives will send certificates to the states notifying them how many Congressional seats they will have.

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.  A group of state and local governments, led by New York, now challenge the legality of that memo in court.

The challenge before the SCOTUS raises both substantive questions of law (primarily, whether the phrase “persons” for census purposes includes immigrants present illegally), and questions of procedure (such as whether the president can legally dictate the terms of the presidential memorandum as Trump has attempted to do).  As the justices exchanged questions, answers, and arguments with the appellate attorneys, Donald Trump the individual loomed large; it was impossible to ignore Trump’s frequently extreme legal positions, his many unprecedented actions as president, and his routine unwillingness to follow both law and tradition.

Most profoundly, when the justices focused on the substantive question — whether it would be legal to exclude various categories of immigrants from the census count — it was difficult not to view their input through the lens of Trump’s many hardline policies on immigration.

New York Solicitor General Barbara Underwood argued that “we have always included people who are ineligible to vote and also people who are here illegally.” She also said that the census’s function is one of “finding fact, not giving and holding rewards.” Even before Solicitor General Underwood presented her argument, though, the justices appeared mindful of her position. Justice Stephen Breyer noted to the Trump Administration’s lawyer, Acting Solicitor General Jeffrey Wall, that the Court has “about forty briefs” that weigh against the merits of the Administration’s argument. Asking directly about the immigrants in question, Justice Breyer demanded, “they’re persons, aren’t they??”

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?” Justice Sonia Sotomayor pointed out that the government’s position is even broader than it had been in Heller (the landmark SCOTUS decision dealing with gun rights) – seeking to exclude all immigrants present illegally, instead of merely certain subcategories. As the justices made their way though both the theoretical and practical arguments about the legality of counting all “persons” in the census, it appeared that many shared a moderate, pragmatic view of undocumented immigrants. That moderation, combined with nuanced understanding of the meaningful differences between illegal border-crossers and DACA recipients, or between asylum-seekers and ICE detainees, stands in stark relief to the Trump administration’s willingness to paint immigrants with an overly broad brush.

Moreover, it was tough to ignore discussions over how to count groups of individuals against the implicit backdrop of Trump’s ongoing challenges to the results of the presidential election. Although the administration’s position is in part based on practical difficulties of accurately counting undocumented immigrants, Justice Samuel Alito pointed out that 60,000 individuals are currently in ICE detention facilities — making them easily ascertainable. Justice Elena Kagan followed up by pressing Wall about the nearly 200,000 people who are the subject to final orders of removal and the more than 700,000 individuals who are DACA recipients. While some undocumented immigrants could be difficult to count, these groups, for whom there is ample documentation, would not.

While none of the justices made any reference to the election, the obvious disingenuousness of the administration’s refusal to admit the ease of counting some of the groups in question provided a parallel to Trump’s often illogical position on vote counts.

Underwood’s closing statement, “The federal government can induce them to leave, but not declare them to be gone,” could as easily have been applied to groups of voters or to ballots as it could to groups of individuals counted for the census.

Also lurking just beneath the surface of oral arguments was the suggestion of Trump’s willingness to follow both court orders and historically-set expectations.

Chief Justice John Roberts characterized New York’s lawsuit as an attempt to seek a “gag order” over the commerce secretary’s communications with the president. His question lead to several hypotheticals being thrown about, in which the secretary might send multiple census counts to the president (one including and another excluding counts of immigrants). The Court asked whether Trump could legally rely on unofficial numbers to provide the apportionment report to Congress, and to what extent there might be future litigation over Trump ignoring one report or the other. Before 2016, the discussion might have easily constituted standard courtroom hypothesizing; with Trump as POTUS, however, the possibility of outright departure from the expected use of the report is imaginable if not expected.

Justice Brett Kavanaugh delved into procedural complexities in the case and questioned whether a declaratory judgment could even apply in the case if the president were the object. “A declaratory judgment action has to be addressed to someone that can act,” acknowledged Underwood, “You wouldn’t issue that against the president.” While these points are undoubtedly valid as a simple function of separation of powers, they do so alongside an undercurrent of Trump-specific concern. Trump, who has often questioned the judiciary, put forth the position that he is entitled to absolute immunity, and who has skirted numerous legal requirements, cannot be counted upon to follow the Court’s instructions. Put in the context of apportionment counts, which has direct relevance to Congressional representation, it would be unsurprising if Trump’s choice of action were to operate outside the judgments of the judiciary.

The Court will next consider whether to decide the case on the underlying legal questions presented or whether to take a more arms-length approach and rely on potential procedural issues in making its decision. How its ultimate decision will affect Trump’s legacy, the future of apportionment, or Trump himself remains to be seen. What is unavoidable, though, is that the justices seem willing to consider the government’s position in the case a reflection not only of the Trump administration, but also of Trump the individual.

[Photo by Doug Mills/Pool/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos