In a case being watched for its potential impact on federal education funding, a divided U.S. Supreme Court held Friday that it would be premature to rule on the legality of President Donald Trump鈥檚 plan to exclude undocumented immigrants from the final census tally he reports to Congress.
鈥淎t present, this case is riddled with contingencies and speculation that impede judicial review,鈥� the majority said in an unsigned opinion in (Case No. 20-366).
The president鈥檚 goal has been to exclude undocumented immigrants from the final census number that the secretary of commerce is required to finalize by Dec. 31 and that the president is supposed to deliver to the new Congress in early January to be used for the apportionment of seats in the U.S. House of Representatives.
But oral arguments in the case in late November confirmed that the Census Bureau is not on track to finish the work of matching administrative records revealing citizenship status with census responses to be able to exclude all of the estimated 10.5 million undocumented immigrants from the tally.
鈥淎ny prediction how the Executive Branch might eventually implement [the president鈥檚] statement of policy is no more than conjecture at this time,鈥� the court said in the per curiam opinion.
The upshot of the ruling is that the Trump administration can use its final weeks in office to try to complete the president鈥檚 goal of excluding undocumented immigrants from the apportionment figure.
Opponents of the Trump plan say it is both unconstitutional and against federal statute, as well as not in keeping with a long history of counting all inhabitants in the country as part of the census. Their central concern is that the plan would likely cost immigrant-heavy states including California, New Jersey, and Texas a congressional seat after reapportionment, while Alabama, Minnesota, and Ohio may gain a seat they would otherwise lose due to population shifts.
But the opponents also worry that the apportionment figure would affect the way billions of dollars in federal funding tied to census figures is allocated, including for education programs. Education groups led by the National School Boards Association filed a in the case laying out those concerns.
Credence on Funding Concerns
Justice Stephen G. Breyer, in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, said the case was ripe for resolution and that he would strike down the president鈥檚 plan as unlawful. The president鈥檚 July memorandum 鈥渧iolates Congress鈥� clear command to count every person residing in the country, and should be set aside.鈥�
Breyer鈥檚 21-page dissent gave credence to the opponents鈥� concerns about funding.
鈥淚ndeed, a number of federal statutes require that funding be allocated based on the results 鈥榗ertified,鈥� 鈥榮tated,鈥� or 鈥榬eported,鈥� by the decennial census,鈥� Breyer said. 鈥淭hese phrases seem always to have been understood to refer to the apportionment tabulation reported to the president by the secretary of Commerce (the report here at issue), because that is the only tabulation that the law requires to be 鈥榗ertified鈥� or 鈥榬eported鈥� as part of the decennial census.鈥�
Breyer said there was no guarantee that, as the Trump administration has argued, the commerce secretary would add back the excluded immigrants to the census tally for funding calculations.
鈥淪tatute after statute pegs its funding to a state鈥檚 share of 鈥榯he total population of all the states as determined by the last preceding decennial census,鈥欌�� Breyer said, quoting language from several such laws. 鈥淕iven the connection between the decennial census and funding allocation, a change of a few thousand people in a state鈥檚 enumeration can affect its share of federal resources.鈥�
The majority, in the unsigned opinion, said the plan鈥檚 鈥渋mpact on funding is no more certain鈥� than its affect on reapportionment.
鈥淎ccording to the government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum,鈥� the majority said. Under that view, the majority added, changes to the commerce secretary鈥檚 report or to the president鈥檚 statement to Congress 鈥渨ill not inexorably have the direct effect on downstream access to funds or other resources predicted by the dissent.鈥�
Neither the arguments nor the opinion in the case addressed the forthcoming change in presidential administrations, and whether once President-elect Joseph R. Biden Jr. takes office any changes made by the Trump administration on final census numbers could be reversed.
