“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump justices Neil Gorsuch, Brent Kavanaugh, and Amy Coney Barrett cast deciding votes to  vacate an order that invalidated a Trump census  plan to exclude undocumented immigrants from the “apportionment base” – population statistics reported by the Census Bureau after each census that are used to determine how many House sears are apportioned to each state.  The Court’s December 2020 ruling was in Trump v New York.

Despite the Supreme Court’s rejection in 2019 of his previous effort to add a citizenship question to the 2020 census, President Trump issued a memorandum this summer that directed the Bureau and the Commerce Department to do everything they can to exclude undocumented immigrants from the official 2020 census population counts that will be  used to reapportion seats in the House of Representatives among the states. Evidence clearly suggests that one of the purposes of the directive was to reduce the number of seats allocated to and the political power of California, because of the many undocumented immigrants there.

Challenges to Trump’s directive have been filed across the country, and a special three-judge federal court in New York determined that the directive violated federal statutes and the Constitution, which require that all people be counted and their numbers included in the census and in the apportionment base. The Trump Administration appealed to the Supreme Court.

In an unsigned 6-3 opinion in which Trump justices Gorsuch, Kavanaugh and Barrett cast deciding votes, the Court vacated the lower court’s order. The majority stated it was not expressing a view on the merits of the challenge but claimed that the case is “riddled with contingencies and speculation that impede judicial review.” Specifically, the majority ruled that the original basis on which the lower court found that plaintiffs had standing to challenge the directive— that it was “chilling aliens and their families from responding to the census” – no longer existed because the census response period has ended. The majority claimed that the plaintiffs’ current argument that there was injury because of the “threatened impact” of an “unlawful apportionment” on “congressional  representation and federal funding” was too dependent on “contingent future events that may not occur,” and the case was therefore not “ripe” for review. The majority noted that the Bureau has not yet provided any numbers to Trump despite an initial deadline at the end of the year, that the government had suggested at oral argument that  the “policy may not prove feasible to implement in any manner,” and that there is a “significant degree of guesswork” as to which and how many undocumented immigrants, if any, can be excluded. The majority thus vacated the order and directed the lower court to dismiss the case for now.

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor strongly dissented. The dissent noted that the Court has previously “reached and resolved controversies concerning the decennial census based on a substantial risk of an anticipated apportionment harm,” so that ripeness was not in fact a barrier. Waiting until after a report by the President is submitted to Congress as the majority “seems to prefer,” the dissent explained, “risks needless and costly delays in apportionment.” Despite the implementation problems the Bureau is having, the dissent went on, there is clearly a “substantial risk” that the threatened harm will occur, especially in light of the stated purpose of the directive to reduce the “political influence” and “congressional representation” of states like California that contain undocumented immigrants. Where the government concedes that it is “working to achieve an allegedly illegal goal,” the dissent stated, the Court “should not decline” to adjudicate the case “simply because” the government “speculates that it might not fully succeed.” Even without reaching the constitutional issue, the dissent continued, it is clear that Trump’s directive violates federal law directing that all residents of a state be included in the census and the apportionment base regardless of immigration status, as reflected by “nearly 100 years” of the “consistent position” taken by the government before Trump.

What will actually happen as a result of Trump’s directive remains unclear, and if Trump does submit apportionment numbers purporting to exclude undocumented immigrants from the apportionment base while he is still President, action can hopefully be taken in response. Congress has the authority to extend reporting deadlines as well. The decision made possible by Trump justices Gorsuch, Kavanaugh and Barrett to vacate yet another ruling invalidating a Trump policy, however, remains very troubling.