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Court to weigh Trump census plan

Bid to not count migrants in U.S. illegally at center of case by GREG STOHR BLOOMBERG NEWS | November 28, 2020 at 4:30 a.m.

President Donald Trump's administration has one last blockbuster showdown at the Supreme Court over his immigration policies, and this one goes to the heart of how U.S. political power is allocated.

In an argument set for Monday, the administration will seek the right to exclude migrants in the country illegally from the census count used to divvy up congressional seats and federal funds. The move would change more than two centuries of practice in a nation that has always counted noncitizen residents.

The administration is racing to finish the count, and submit a report to Congress, before President-elect Joe Biden is inaugurated to succeed Trump on Jan. 20. Critics say Trump is trying to manipulate the 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.

"This case is about the basic constitutional requirements for how political representation is divided in this country," said Dale Ho, an American Civil Liberties Union lawyer who will argue against the Trump plan Monday. "For 230 years, it's been on the basis of people living in each state, and what the administration wants to do is a radical departure from that."

The 80-minute session Monday is Trump's biggest remaining Supreme Court argument in a presidency defined by legal battles over immigration.

Since 2018, the court has upheld Trump's restrictions on travel from several predominantly Muslim countries, blocked his addition of a citizenship question to the census and stopped him from rescinding the Deferred Action for Childhood Arrivals program. The justices also let Trump force asylum applicants to wait in Mexico and cleared him to use redirected Pentagon funds to build fencing along the Mexican border.

The court has put the latest census case on a fast track, making a ruling possible by the end of the year. But the challenge is just one of several Trump will have to overcome to accomplish his goal.

With the pandemic slowing the count, Census Bureau officials have told the Commerce Department that they can't produce the state population totals until after Trump leaves office, The New York Times reported last week. 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.

But the focus next week will be the Supreme Court, as Trump tries to take advantage of the 6-3 conservative majority he helped create. The president is defending his July 21 memorandum making it administration policy to exclude migrants in the country illegally 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.

Current federal law requires the Commerce secretary to send the census figures to the president by Dec. 31, and the president to send Congress the numbers for allocating House seats by Jan. 10.

Three lower courts around the country have said the Trump policy violates either the Constitution or federal statutes. In the case directly before the justices, a three-judge panel in New York said the plan runs afoul of the U.S. Census Act, which requires the Commerce secretary to show the "tabulation of total population by states" and says the president must give Congress "the whole numbers of persons in each state."

Critics of the Trump push say those words leave no room for interpretation. That's an argument that could resonate with Trump's three Supreme Court appointees -- Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett -- all of whom advocate interpreting laws strictly according to their text.

"It's difficult to know how Congress could have been any more plain than they already were unless they put in parentheses 'and we really mean it,'" said Justin Levitt, a law professor at Loyola Law School in Los Angeles.

The Trump administration contends the laws leave room for the president to exclude people who are in the country illegally. The administration's top Supreme Court lawyer, acting U.S. Solicitor General Jeffrey Wall, argued in court papers that the phrase "persons in each state" means "inhabitants," a term whose application requires the use of judgment.

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