AG: ‘We will prevail’ in census challenge

The U.S. Supreme Court heard oral arguments Monday as New York Attorney General Letitia James leads a coalition of states, counties and municipalities to challenge President Donald Trump’s attempt to exclude counting undocumented immigrants in the nation’s decennial census count. Jonathan Weiss/Dreamstime/TNS

New York Attorney General Letitia James is confident the U.S. Supreme Court will rule against President Donald Trump’s attempt to exclude millions of immigrants from the 2020 census count following Monday’s oral arguments.

Supreme Court justices debated over New York v. Trump on Monday whether the outgoing Trump administration could seek to exclude a small category of undocumented immigrants, such as those who are held in detention awaiting deportation.

Trump issued a memo in July 2019 ordering the Census Bureau to exclude to the “maximum extent” possible those who were not legal residents from the apportionment base, which determines each state’s number of representatives in Congress, though the U.S. Constitution calls for counting “the whole number of persons in each state.”

James cited Monday the nation’s 230-year history collecting the decennial census, or a complete count of every person residing in the United States of America.

“The United States Constitution and the census are crystal clear: Every person residing in the United States on census day, April 1, regardless of legal status, must be counted,” James said during a telephone press conference Monday afternoon when court arguments ended. “This is nothing more than an effort to strip immigrant-rich states like New York out of representation.”

Trump’s memo took direct aim at California and said the state could lose two or three seats in Congress for the next decade. But lower courts have ruled Trump’s order illegal, and the administration’s arguments for reviving it gained no traction Monday.

The order could also mean fewer congressional representatives in New York, James said, adding officials have not counted an accurate number of undocumented people living in the state.

Texas also stands to lose a congressional seat under the president’s policy.

“States are going to start redistricting right away,” said American Civil Liberties Union lawyer Dale Ho, who urged justices Monday to rule that Trump’s memo was illegal and unconstitutional. “We need to get this issue resolved ASAP.”

Justices Brett M. Kavanaugh and Amy Coney Barrett — both Trump appointees — told an administration lawyer they doubted the legality of excluding millions of long-time residents from the census count.

“I am confident we will prevail,” James said. “No one ceases to be a person because they lack documentation or ceases to be a person because the president would prefer them to leave.

“We will do whatever necessary to stop the president from putting politics above the law and tipping the balance of power in the nation, and that includes post-apportionment litigation,” she added. “Trump’s repeated attempts to hinder apportionment have failed. We have all the confidence his illegal actions will fail once again. After all, everyone counts and therefore, everyone must be counted.”

James filed a lawsuit in July, leading a coalition of states, counties and municipalities to stop the president’s order and ensure every resident is included in the final count regardless of immigration status.

Census data determine state legislative district lines, federal funding, representation in Congress and more based on population totals.

A three-member Southern District court deliberated on James’ case Sept. 10, ruling Trump’s plan to exclude undocumented immigrants from the apportionment base was illegal.

“It doesn’t matter if you’re an adult or a child, if you’re a citizen or an immigrant or if you have lawful status — it’s just the fact of your usual residence in the United States,” Ho said. “A citizen can be an inhabitant or a noncitizen can be an inhabitant or not. This memo, which purports to people not in lawful status, the term ‘illegal alien’ does not appear in the Immigration and Nationality Act. It’s not defined in any way and people’s status changes over time for many different reasons.”

Three separate courts have unanimously rejected Trump’s policy as unlawful, including judges appointed by Republicans and Democrats.

“Our hope is the Supreme Court will as well,” Ho said.

In June 2019, the Supreme Court struck down the Commerce Department’s plan to add a citizenship question to the census. Having lost on that front, Trump and his lawyers suggested the Census Bureau use other government records to determine who was in the country illegally.

The Commerce Department is supposed to deliver census data to the president by Dec. 31 by law, but officials have said the report may be delayed because of Trump’s order. The case was expedited for Supreme Court review, granted with the promise officials would meet the mandatory Dec. 31 deadline.

Officials must continue under the assumption the department will meet the deadline, Ho said, adding the litigation is necessary.

“Even if the Census Bureau’s professional experts think a statistically reliable count can’t be [completed] until the end of January, I don’t think the administration would try to ram something through, even if the professionals thought it met accepted standards in social science,” Ho said. “They’ll [Trump’s administration] put Sharpie on an NOAA map to show you where a hurricane’s going — I wouldn’t put it past them to put some dubious number of advocacy by Dec. 31. If they were to walk away from the policy, that would be one thing, and that’s part of why this case remains necessary.”

James and Ho agreed it’s too soon to plan additional legal challenges if apportionment counts are not delivered by Dec. 31.

“I don’t think we know enough right now to know one way or the other,” Ho said. “Your reporting is that it’s just impossible for the Census Bureau to do it. I don’t know how you ensure to make something possible that’s impossible. ...If there were other reasons for the delay, that could factor into our thinking, but I don’t know enough right now.”

The attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin and the District of Columbia joined James in prosecuting Monday’s case, as well as several municipalities, including the cities of Central Falls, Rhode Island; Chicago; Columbus, Ohio; New York City; Philadelphia; Phoenix; Pittsburgh; Providence, Rhode Island; Seattle; the city and county of San Francisco, California; Monterey County in California; Howard County in Maryland; Cameron, El Paso and Hidalgo counties in Texas and the bipartisan U.S. Conference of Mayors.

Tribune News Service contributed to this report.

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