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failed to provide a truthful justification for it as Some questioned whether the case was ripe to
required by law. decide and whether they should wait for more
The court heard arguments on Nov. 30 in the information about how many undocumented im-
latest case. The Trump administration asked migrants would be excluded.
the justices to vacate an injunction barring the “We expedited this case (at the government’s
secretary of commerce from following a July request) in light of the Dec. 31 (reporting) dead-
memorandum issued by the president. That line. Is that date still operative?” Roberts asked
memorandum directed the secretary to provide, acting Solicitor General Jeffrey Wall during the
with the total population count, information that arguments. Wall replied, “the situation is fluid”
would allow Trump to exclude undocumented and the administration was not likely to send the
immigrants to the maximum extent feasible census report to Trump by the year-end deadline,
from his calculations for apportionment of U.S. but hoped to send some of the immigration infor-
House seats. mation to Trump in January.
The government argued that the challengers But if the court doesn’t intervene to decide the
did not have standing to chal- challenge now, Roberts pressed
lenge the memo because, with Wall, when would any injury to
the census counting completed, the challengers be addressed?
there was no injury or chilling Wall said there could be post-
effect to justify the suit. It also The ACLU’s Dale Ho, who apportionment challenges. “Isn’t
contended that the president’s argued against Trump, that like having to unscramble
memo was a permissible exercise said Friday: “The legal the eggs?” Roberts said. “Any
of his discretion under laws gov- mandate is clear—every change in any one state is going

erning apportionment. single person counts in the to have ripple effects across the
The case stemmed from chal- census, and every single country.”
lenges by a coalition of state and The ACLU’s Ho, counsel to the
local governments, led by New person is represented in immigration council, cautioned
York, and the New York Immi- Congress. If this policy is that sending the case back to the
gration Council. The challengers ever actually implemented, lower court for additional pro-
charged that the new policy vio- we’ll be right back in court ceedings “would be disruptive to
lated the Constitution and the ongoing redistricting processes.”
challenging it.”

Census Act, which require an When the court did briefly
enumeration of all “persons in focus on the core issue, Justice
each state” and apportionment Amy Coney Barrett warned the
based solely on that enumeration. government that “a lot of his-
A three-judge district court in New York ruled torical evidence and longstanding practice really
against the administration in September. Courts in cuts against your position.” Wall replied, “The
California and Maryland also have rejected the ad- historical practice is the best argument on [the
ministration’s defense of the memo, but a panel of challengers] side, but that doesn’t mean it’s con-
the U.S. Court of Appeals for the D.C. Circuit said stitutionally compelled. To say the president can’t
a ruling on the merits was premature. do it this way, they need to point to something in
During arguments, very little time was spent text and history that mandates they be included—
on the core question of whether undocumented even someone apprehended at the border or in an
immigrants count as “persons” for purposes of ICE facility for a day or two.” ¦
apportionment.
Instead, a number of the justices voiced impa- Marcia Coyle, based in Washington, covers the
tience with the government’s inability to tell them U.S. Supreme Court. Contact her at mcoyle@alm.
if and how the new policy was to be implemented. com. On Twitter: @MarciaCoyle

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