WASHINGTON — The Supreme Court sounded skeptical Monday that President Trump could categorically exclude people living in the country illegally from the population count used to allot seats among the states in the House of Representatives.
But it also appeared possible that the justices could avoid a final ruling on the issue until they know how broadly the Trump administration acts in its final days in office.
Solicitor General Jeffrey Wall, Trump’s top Supreme Court lawyer, said the president might try to leave out of the count people who are in immigration detention or those who have been ordered to leave the country.
But under questioning from Justice Elena Kagan, Wall would not rule out larger categories of immigrants, including those who have protection from deportation under the Deferred Action for Childhood Arrivals programs.
“We can’t be certain at this point, and we don’t know what the president will decide to do with respect to that,” Wall said.
Justice Amy Coney Barrett was among several members of the court who said the administration’s argument for broad discretion in deciding whom to exclude is troublesome because “a lot of the historical evidence and long-standing practice really cuts against your position.”
The court, meeting by telephone because of the coronavirus pandemic, heard the case on a fast track in response to the administration’s plea for a decision by early January when Trump is required to transmit census numbers to Congress.
The Census Bureau is supposed to send its data to Trump by Dec. 31.
But Wall told the court Monday, “We are not currently on pace to send the report to the president by the year-end statutory deadline.”
A delay of even three weeks would mean the Census Bureau would be turning in the numbers to a new president. President-elect Joe Biden takes office on Jan. 20.
Several conservative justices suggested that the better course for the court would be to avoid ruling immediately on lawsuits because Trump’s intentions are speculative at this point.
“If the additional information would be beneficial in a few weeks, wouldn’t it be beneficial to actually resolving this case? As the questioning seems to suggest, there’s some difficulty in assessing exactly what information will be available and what that information will be,” Justice Clarence Thomas said to Dale Ho, the American Civil Liberties Union lawyer representing immigration groups.
The court could simply sit on the case in front of it to see what happens, or dismiss it as premature. The second option would allow Trump to move forward with his plan and lead inevitably to a new lawsuit.
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