Supreme Court to Take Up Whether Illegal Aliens Should Be Included When Apportioning House Seats By Population

President Donald Trump’s decision to exclude illegal aliens from the population count used to determine congressional seats, is headed for the Supreme Court.

Arguments will take place on Monday by telephone because of COVID. The administration’s top lawyers are hoping the justices will agree that it’s constitutional to reject millions of illegals from the population count that determines how many seats each state gets in the House of Representatives as well as the allocation of some federal funding. California could lose two to three House seats if the administration’s estimate of over 2 million people living in the state illegally were excluded.

Federal courts in California, Maryland and New York have ruled that Trump’s plan violates federal law or the Constitution, which provides that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” A fourth court, in Washington, D.C., held this past week that a similar challenge to the administration plan was premature, an argument that also has been made to the high court.

The administration argues that both the Constitution and federal law allow the president to exclude “illegal aliens” from the apportionment count. “As history, precedent, and structure indicate, the President need not treat all illegal aliens as ‘inhabitants’ of the States and thereby allow their defiance of federal law to distort the allocation of the people’s Representatives,” acting Solicitor General Jeffrey Wall wrote.

But even with a Supreme Court win the Democrats have plans to overturn it. For the order to be carried out, the data processing of the apportionment numbers will have to take place while Trump is still in office, but an announcement this month that anomalies have been found in the data jeopardizes the Census Bureau’s ability to hand in the numbers to the president by a Dec. 31 deadline. Trump, in turn, is supposed to transmit the numbers to Congress by Jan. 10.

This would be a “lucky” turn of events for Democrats, for If problems with the data force a delay of even three weeks, and Biden actually receives the electoral votes to defeat Trump, the Census Bureau would be turning in the numbers to Joe Biden. “The Biden administration will have to see what kind of damage the Trump administration left reapportionment and determine whether an accurate head count, including all persons regardless of citizenship, can be used,” said Jeffrey Wice, an adjunct professor at New York Law School who is an expert in census law and redistricting.

And even if everything is done on time, the House, which will remain under Democratic control next year, might reject the numbers on the grounds that they aren’t what Congress asked the Republican administration to provide, said Justin Levitt, a professor at Loyola Law School in Los Angeles. “If the president turns over something that isn’t plausibly what they asked for, they don’t have to accept it and they don’t have to transmit to the states,” Levitt said.

A long odds wish for House Democrats is that the Senate would agree on an extension. Citing COVID concerns, the Census Bureau asked Congress for an extension until the end of April 2021. The House complied, but the legislation was stopped by Republican Senators. It’s possible that, if either the Supreme Court rejects Trump’s plan or Democrats take control of the Senate after the two runoff elections in Georgia, that the Democrat’s long odds could grow shorter.