This article originally appeared on NJ Spotlight.
While the final U.S. census population estimates are still at least a month away from completion, there is a scenario in which experts believe New Jersey could lose a seat in the House of Representatives and with it some political clout: if undocumented immigrants are excluded from the count.
The U.S. Supreme Court heard oral arguments Monday on a Trump administration plan to do just that. Court watchers doubt the justices will rule on the merits of the plan, given that census officials may not be able to parse out the data that would allow for such an exclusion. And even if they could do that, they may not do so until the president is leaving office next month. The fact that it is unclear whether the data in question can even be produced in time to be relevant is “frustrating,” said Justice Samuel Alito.
“My guess is that the court will not issue a big ruling on the merits of the question,” said Jenny-Brooke Condon, a law professor who directs the Equal Justice Clinic in the Center for Social Justice at Seton Hall University School of Law. “Most of the argument yesterday seemed to focus on the questions of whether or not there was an actual case in controversy before the court or whether it should wait until the end of the census, or at least a number of the justices seem to be concerned about that issue.”
Last year, the high court frustrated the administration’s attempt to ask whether an individual is a citizen as part of the census. Soon after, President Trump signed an executive order directing federal departments and agencies to provide the Census Bureau with all records that would enable officials to count the undocumented and, ultimately, attempt to exclude them from the count.
Five months ago, Trump issued a memorandum in which he stated that the president “makes the final determination” regarding the population count to be used to apportion House seats among the states and that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.”
Trump stated: “Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of federal law.”
States launch challenge
New York state brought a suit, which New Jersey joined, contending the exclusion of undocumented immigrants from the apportionment counts is illegal and unconstitutional and a federal district court declared the memorandum “unlawful.”
The U.S. Constitution states that congressional representatives be apportioned according to “the whole number of persons in each state.”
During arguments Monday, several justices, including recent Trump appointee Amy Coney Barrett, questioned whether the president has the ability to exclude undocumented immigrants from the count.
“A lot of the historical evidence and long-standing practice really cuts against your position,” Coney Barrett told Jeffrey Wall, acting solicitor general, who argued the administration’s case before the court.
Justice Stephen Breyer, a Clinton nominee, was clearer on the likely illegality of that. “All we have on that is about 40 briefs that show that the history, the language, the consequences, the purposes, and a bunch of other things argue against you,” he told Wall.
“There is no precedent for it in American history,” said John Farmer, a former New Jersey attorney general who directs the Eagleton Institute of Politics at Rutgers University. Noting that millions of undocumented people are believed to be living in the country, Farmer said, “The potential effects are enormous.”
Analysis: NJ and CA could lose seats
Should the court allow Trump to use immigration status in determining what population counts will be used in apportionment, New Jersey is one of only two states that could lose one of its current House seats, according to an analysis by the University of Virginia Center for Politics.
According to its analysis of population estimates among all the states, removing the estimated number of undocumented residents from the apportionment count, could decrease New Jersey’s seats in the House from 12 to 11. California, already expected to lose one seat, would lose a second, while Texas, expected to gain three seats, would gain only two.
According to the Pew Research Center, New Jersey is home to about 475,000 undocumented immigrants, the fifth-highest number in the country. California leads the nation with an estimated 2.2 million undocumented and Texas is second, with 1.6 million. Those losses would mean Alabama, Minnesota and Ohio each would not lose a seat, as is now expected.
New Jersey lost a seat in 2010 when its population increased at a slower rate than that of other states.
“It’s a nakedly partisan effort and the states with the most to lose are largely Democratic, while the states that would tend to gain are states in the middle of the country,” said Farmer, who served as the tiebreaking member of the commission that redrew New Jersey’s congressional district boundaries a decade ago. “It’s another form of gerrymandering, using the census.”
Condon of Seton Hall said it would be hard for the justices, especially conservatives “who might be otherwise open to argument from the Trump administration” to support the exclusion of the undocumented. In deciding cases, conservative jurists tend to rely on the plain language of a statute, as well as the concept of originalism, or what the framers of the Constitution intended. Both of those “undermine the Trump administration’s position.”
The arguments could wind up being moot. Wall said the bureau is “not currently on pace to send the report to the president by the year-end statutory deadline,” although it may be able to provide Trump with some of what he requested sometime next month. President-elect Joe Biden is to take office on Jan. 20.
The problem is trying to match the records of people known to be undocumented with those who answered the census. Many of the undocumented try to live under the radar, but federal officials do have information on some, including those currently detained in immigration facilities, those for whom deportation orders have been issued and young immigrants known as “dreamers” who received at least temporary permission to remain in the country through the Deferred Action for Childhood Arrivals program.
“I think it is very unlikely that the bureau will be able to identify all or substantially all illegal aliens present in the country,” Wall told the justices. “They will be able, I think, to do ICE facilities, which, as you say, is some number in the tens of thousands.”
If allowed to exclude the undocumented and only those in the custody of U.S. Immigration and Customs Enforcement, that number is so small as to not likely make a difference in the number of congressmen any state has. But the exclusion of millions could.
“Until we actually take the census master file and these various administrative records, once they’re all cleaned up and ready to go, and we actually run the models in a few weeks or, you know, whenever it is, we won’t actually know how many people we pick up,” Wall said. “They don’t know whether it’ll be 50,000 or 100,000 or 500,000 or a million. So there’s just substantial uncertainty.”
He argued for allowing the administration to proceed and letting states that feel aggrieved at having lost a seat as a result to file a suit in court.
“But isn’t that going to be like having to unscramble the eggs?” asked Chief Justice John Roberts. “I mean, the apportionment, any change in any one state, of course, is going to have ripple effects all across the country, and it does seem like it would be more manageable at an earlier stage.”
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