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Supreme Court Fast-Tracks Dispute Over Illegal Aliens’ Place in Reapportionment

September 30, 2020 by Dan McCue
Looking up at the entrance of the U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – The Supreme Court on Wednesday agreed to fast-track a dispute over whether people living in the United States illegally must be included in the reapportionment of congressional seats.

Under federal law, once the decennial census is completed, the secretary of commerce must give the president a state-by-state breakdown of the total population, which in turn is used to allocate seats in the House of Representatives.

In July, President Trump — stymied in his bid to have a citizenship question added to the census itself — issued a memorandum directing the secretary to include information in his report that would allow him to exclude people who are in the country illegally from the apportionment calculation.

The formal request has profound implications for the makeup of Congress. According to the Pew Research Center, California, Florida and Texas would end up with one less congressional seat each than if every resident were counted.

Without that population, California would lose two seats instead of one, Florida would gain one seat instead of two and Texas would gain two seats instead of three.

Additionally, the Pew analysis shows Alabama, Minnesota and Ohio would each keep a congressional seat they most likely would have lost during the apportionment process.

Not surprisingly, Trump’s directive inspired a rash of lawsuits. In one, filed by Common Cause on behalf of the City of Atlanta and others, the plaintiffs argue Trump’s memorandum breaks with almost 250 years of tradition and is unconstitutional.

Also challenging the directive are a coalition of states led by New York Attorney General Letitia James a group of civil rights organizations; and the ACLU, which is suing on behalf of immigrant rights groups.

In September, a three-judge panel in New York temporarily blocked the administration from going ahead with the plan.

Last week, Acting U.S. Solicitor General Jeffrey Wall, representing the Trump administration asked the Supreme Court to fast-track the combined cases and schedule oral arguments in December, by which point it hopes nominee Amy Coney Barrett will have joined the court.

In its brief order Wednesday, the Supreme Court ordered those challenging the directive to respond to the government’s appeal by Oct. 7. As is their custom, the Justices did not explain their rationale for doing so.

Last year, a divided Supreme Court held the administration’s justification for including a citizenship question on the census was “pretext” and ordered it struck unless a better reason could be given.

Ultimately, the Commerce Department decided to abandon its plan to add the question. 

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