The Supreme Court on Friday, December 18, handed President Trump a final high-court victory in his effort to exclude undocumented aliens from the census. President Trump engineered the win by strategically timing his policy moves to head off court challenges against him and to manipulate those challenges in the courts. The six conservatives on the Court readily acceded to this strategy, handing President Trump a victory, enabling his manipulation, and allowing his long-sought effort to exclude unauthorized aliens to come to fruition. At least for now.
The case started several years ago, when the Secretary of Commerce, who is in charge of the census, directed that the Census Bureau add a citizenship question to the standard census form in the 2020 count. Although the citizenship question marked a break from recent tradition in the census—the Census Bureau had not asked this question on the standard census form since 1960—the Secretary said that the Department of Justice needed the information in order to enforce the Voting Rights Act. That explanation was contrived, and the Supreme Court said so. The Court held that the Secretary could not add the citizenship question unless and until it could come up with a legitimate reason for doing so.
The Trump administration waited a full year to react. Then, in the summer of 2020, President Trump issued a memorandum directing the Secretary to provide two sets of numbers when the Secretary reported the census results to the President: a total census head count; and a separate count of unauthorized aliens. President Trump said that he would discount the total head count by the number of unauthorized aliens when he determined the apportionment base for each state’s seats in the House of Representatives. In other words, President Trump intended to take away representation in the House (and also in the electoral college) from states with large populations of unauthorized aliens. The move could also diminish federal funding to those states under the many federal programs that tie funding to the census numbers.
This had never been done before, and for good reason. Both the Constitution and federal law specify that the census include the “whole number of persons” in the United States. That means everyone who resides here regularly, including unauthorized aliens. Unauthorized aliens live, work, go to school, and pay taxes here, and so the Constitution requires that they be counted, and represented, too.
But President Trump’s eleventh-hour order ensured that states and immigration advocates could not effectively challenge the move in court. That’s because the administration itself did not know whether, when, and how it could comply with the directive. Given the complexities involved with identifying and counting the estimated 10.5 million unauthorized aliens in the country, the administration simply did not know if it could do it. And because of this uncertainty, the administration claimed that any court challenges were premature.
The Supreme Court agreed, and tossed the case out. The six conservatives on the Court ruled that the uncertainties meant that the plaintiffs could not say whether and how the directive would harm them, and that the case wasn’t “ripe” for court review. In so ruling, the Court acceded to President Trump’s cynical manipulation of the process—his late order, and the administration’s inability to say with any certainty that it could comply.
If all this sounds familiar, that’s because it is. Time and again, President Trump has manipulated the courts to achieve his hotly controversial and outright illegal policies. It started early in the Trump presidency, with the Muslim travel ban. The Trump administration rejiggered that policy to insulate it from court review. The Supreme Court upheld the ban, even as the administration barely concealed its illegal anti-Muslim animus.
The Court’s ruling in the census case is an appropriate bookend to the travel ban ruling: President Trump came into office manipulating the courts to achieve an illegal policy, and he’s leaving office the same way.
Still, our ordinary political and legal processes may check this President’s attempts at manipulation. The Court’s ruling in the census case allows the plaintiffs to challenge the President’s action if and when it results in a tangible harm to them. And the plaintiffs’ attorneys have already said they will.