- The Washington Times - Friday, December 18, 2020

The Supreme Court ruled Friday that it’s too early to decide whether President Trump can exclude illegal immigrants from the census count he will send to Congress to decide how House seats are divided up among the states over the next decade.

In an unsigned opinion, the court sent the case back to the lower courts with orders to be dismissed.

That means Mr. Trump’s Census Bureau can continue to work on a count that would exclude illegal immigrants, but it preserves the chance for opponents to launch another challenge if and when the president submits that count to Congress.

“At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature,” the court ruled.

Justice Stephen Breyer dissented, joined by the two other Democratic appointees, Justices Sonia Sotomayor and Elena Kagan.



They said the uncertainties surrounding Mr. Trump’s attempt to slice out illegal immigrants are so great that it means the case should be decided now.

The census did count illegal immigrants, and will produce a full count of all residents in the country as of April 1. But Mr. Trump earlier this year asked the bureau to work on another count that would live out illegal immigrants from that number.

It’s that second count that he wants Congress to use when divvying up House seats.

By one estimate, California and New York would each end up with one less seat, while Southern or Midwestern states would benefit.

Multiple lower courts had ruled against Mr. Trump, arguing he was breaking the laws governing the census.

The justices sped the case to their docket to get a quick ruling.

Dale Ho, an American Civil Liberties Union lawyer who argued against Mr. Trump before the high court, said the lower court decisions show the president’s plans are still in trouble.

“This Supreme Court decision is only about timing, not the merits,” he said. “If this policy is ever actually implemented, we’ll be right back in court challenging it.”

Anti-Trump activists said given the looming end of the Trump administration, they doubt he will be able to complete his second count.

They predicted President-elect Joseph R. Biden will drop the idea.

The government has admitted in court that it will be difficult to slice out most illegal immigrants, because their identities are not well enough established to exclude them individually.

One group that could be cut out is illegal immigrants who were in immigration detention facilities on April 1. Their identities are well established, the government argues.

But that only nets several tens of thousands.

Trickier questions come with populations such as DACA, the Obama-era deportation amnesty, that grants illegal immigrant “Dreamers” a tentative foothold in the U.S. but no firm legal status. The government was coy during court arguments about how they might be handled.

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