Court Blocks Trump's Attempt To Change Who Counts For Allocating House Seats

Sep 10, 2020
Originally published on September 16, 2020 2:09 pm

Updated at 11:25 p.m. ET

A special three-judge court in New York on Thursday blocked the Trump administration's efforts to make an unprecedented change to who is included in the census numbers that determine each state's share of seats in Congress.

The president, the court concluded, cannot leave unauthorized immigrants out of that specific count.

The decision comes after the July release of a memorandum by President Trump that directs Commerce Secretary Wilbur Ross, who oversees the U.S. Census Bureau, to provide Trump with information needed to exclude immigrants who are living in the United States without authorization from the apportionment count.

The panel of judges — including U.S. Circuit Judge Richard Wesley, Circuit Judge Peter Hall and District Judge Jesse Furman — noted the president does have some direction over the census and how the results of the count are used for reapportionment. But that authority, which is delegated from Congress, is limited.

A "tabulation of total population" is what the commerce secretary is directed to report to the president from the once-a-decade census, under Title 13 of the U.S. Code. According to Title 2, the president, in turn, is supposed to hand off to Congress "a statement showing the whole number of persons in each State."

Because Trump's memo "deviates" from that "statutory scheme," the judges declared it "an unlawful exercise of the authority granted to the President."

The panel ultimately issued a narrow ruling against the memo.

"Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself," the panel wrote in their opinion.

Their injunction against the administration permanently bans it from including any information about the number of unauthorized immigrants in each state in the commerce secretary's report to the president. The judges, however, are not stopping the administration from "continuing to study whether and how it would be feasible to calculate" those numbers to allow the secretary to comply with the memo "in a timely fashion" in case a higher court overturns their ruling.

Since the first U.S. census in 1790, the country's official once-a-decade population numbers used to reapportion seats in the House of Representatives have included both U.S. citizens and noncitizens, regardless of immigration status. Enacted after the Civil War, the 14th Amendment ended the counting of an enslaved person as "three fifths" of a free person by requiring the counting of the "whole number of persons in each state."

The president ultimately plays a limited role in reapportioning Congress. After the president hands off the latest numbers to Congress, the clerk of the House of Representatives is supposed to send to the governors a "certificate of the number of Representatives" each state receives, according to Title 2 of the U.S. Code.

The Justice Department, which is representing the administration in these two lawsuits based in Manhattan, declined to comment on the judge's ruling, DOJ spokesperson Mollie Timmons said in an email to NPR.

"This is a huge victory for voting rights and for immigrants' rights," said Dale Ho, the director of the ACLU's Voting Rights Project who helped represent a coalition of plaintiffs led by the New York Immigration Coalition in one of the lawsuits.

This legal fight in New York reassembled many of the same challengers and attorneys who were part of litigation over the administration's failed efforts to add the now-blocked citizenship question.

"President Trump's repeated attempts to hinder, impair, and prejudice an accurate census and the subsequent apportionment have failed once again," said New York State Attorney General Letitia James, whose office led a group of states, cities and counties in the other Manhattan-based lawsuit over Trump's memo.

Trump's memorandum has sparked eight legal challenges around the country. In addition to the two based in Manhattan, federal judges are hearing cases over the memo in Northern California, Washington, D.C., Massachusetts and Maryland, where an ongoing lawsuit about the administration's efforts to produce citizenship data was expanded last month with additional allegations about the memo.

Fearing the loss of a House seat after the 2020 census, the state of Alabama is leading an ongoing case that was filed in 2018 to try to force the Census Bureau not to include unauthorized immigrants in the apportionment count.

The memo's challengers have raised concerns that its introduction in late July, shortly before door-knocking efforts for the 2020 census were about to launch nationwide, has helped deter many households with immigrants from taking part in the count.

"We want to make sure that our community knows that they count and we will go to any means to make sure that their humanity is respected," said Cesar Espinosa, executive director of FIEL, a Houston-based immigrant advocacy group. "We want to make sure that we do not go back in time when humans are counted as a fraction of a person."

The ruling in New York may be appealed directly to the U.S. Supreme Court. Federal law allows decisions by a three-judge court — which are convened for lawsuits challenging the constitutionality of how congressional seats are reapportioned among the states — to skip review by an appeals court.

In addition to this legal fight over who counts for reapportioning House seats, the bureau is embroiled in lawsuits over the Trump administration's directive to shorten the 2020 census schedule — already disrupted by the coronavirus pandemic — to make sure the president receives the apportionment count by Dec. 31.

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News now about the census - a special court in New York has ruled to block the Trump administration's attempt to change who counts in the numbers used to allocate congressional seats among the states. President Trump has called for immigrants in the country illegally to be left out, but the court ruled today that under federal law set by Congress, he cannot do that. NPR's Hansi Lo Wang covers all things census-related, and he joins us now from New York.

Hey, Hansi.


CHANG: So tell us a little more about how the judges arrived at this decision.

WANG: Well, this is a ruling from a special three-judge panel in New York. And they concluded that President Trump - even though he does have some discretion over the census delegated from Congress and discretion over how numbers are used to reallocate seats in the House of Representatives among the states, President Trump, they concluded, has stepped outside the limits of his authority by issuing this memo in late July that calls for unauthorized immigrants to be left out of the count for reapportioning seats in Congress, that that crosses the limits of his authority because Congress has directed the president through Title II of the U.S. Code, for example, to deliver to Congress the apportionment count that is, quote, "a statement showing the whole number of persons in each state." And so this is a major victory for challengers of the memo in two lawsuits, one led by New York State Attorney General's Office and another by immigrant rights groups represented by the ACLU.

CHANG: OK, so what do we know about why President Trump wanted to do this in the first place?

WANG: President Trump said in this memo that he released in July that excluding unauthorized immigrants, in his opinion, from the numbers used for reapportioning Congress would be, quote, "more consonant with the principles of representative democracy underpinning our system of government," unquote. But by doing that, if he were to do that, it goes against more than two centuries of precedent since the very first U.S. Census in 1790. Numbers have included both citizens and non-citizens regardless of immigration status.

You know, here's something we need to remember. The numbers we're talking about are really about how political power is distributed for the next 10 years not just in House seats but also in Electoral College votes. So presumably, there could have been effects here by excluding...

CHANG: Right.

WANG: ...Unauthorized immigrants. That could have transferred more political power to states with lower shares of unauthorized immigrants. But, again, it's really a theory right now because the census is just such a mess right now. Between the pandemic and last-minute schedule changes, no one really knows what the accuracy and what the counts will look like for each state.

CHANG: OK, that's unsettling. Well, what happened today - does that spell the end of this particular legal fight, then?

WANG: Maybe not. That ball is really in the Trump administration's court. This ruling could be appealed directly to the U.S. Supreme Court because there's a federal law that allows court rulings related to reapportion in Congress made by special three-judge courts to skip review by an appeals court.

And, you know, some important context here is that census experts I've talked to say there's no legal way to do what the Trump administration was trying to do by - through this memo, that the Census Bureau is not collecting information about people's immigration status. So the Bureau would have to produce estimates using statistical sampling, which the Supreme Court ruled in 1999 is not allowed for reapportionment. So that's going to be a big challenge if the Trump situation tries to do this and push forward despite this court ruling in New York. Now, then, keep in mind there are six other lawsuits over this memo...

CHANG: Oh, really?

WANG: ...In play around the country.

CHANG: And in the meantime, the census is still going on. As you say, a lot is still up in the air. So how are those lawsuits affecting all this?

WANG: It just adds to the complication and confusion about who should be counted. And challengers of this memo may be celebrating right now that there might be a little bit more clarity for immigrant groups worried about the census.

CHANG: That is NPR's Hansi Lo Wang.

Thank you, Hansi.

WANG: You're welcome. Transcript provided by NPR, Copyright NPR.