The Supreme Court dismissed a challenge to Donald Trump’s final sabotage of the census on Friday, deeming it premature. Trump seeks to exclude an estimated 10.5 million people from the data used to divide up congressional seats among the states because they are undocumented immigrants. This policy, if successful, would strip seats in the House of Representatives from diverse states with large immigrant communities. Because it has not been implemented, however, the Supreme Court determined, by a 6–3 vote, that the case is not yet ripe for resolution. All three liberal justices dissented.
Friday’s decision in Trump v. New York does not come as a surprise: At oral arguments, several conservative justices seemed to be looking for a way out of deciding whether the president has the power to manipulate the census this way. A few, including Justices Brett Kavanaugh and Amy Coney Barrett, even appeared to recognize that Trump’s policy is unlawful. The Constitution requires the apportionment of House seats based on “the whole number of persons in each state,” and the government has never before in history sought to exclude undocumented immigrants. By declaring that an entire class of immigrants are not “persons” who reside in the United States, Trump is trying to pass a modern three-fifths clause—except his policy reduces millions of immigrants to zero-fifths of a person.
Still, the Supreme Court’s conservative majority decided that this threat was insufficient to create a live controversy due to the uncertainty that plagues this case. (It did so in an unsigned opinion apparently joined by all six conservatives.) The federal government does not actually know how many undocumented immigrants live in each state. Trump has directed the Census Bureau to use existing administrative records to obtain these figures. But this process is ongoing, and the bureau has warned that it may not produce the data for weeks—possibly not until Trump has left office. (Joe Biden will undoubtedly retract the policy if it has not yet been executed.) The administration has speculated that it may narrow its goal by excluding only subsets of immigrants, like those in detention. (There are more than 50,000 people in ICE detention today, so even that exclusion could affect apportionment and funding.)
In light of this uncertainty, the majority found that the plaintiffs—which include states that may lose representation and local governments that may lose funding—lacked standing to attack the policy in court. Trump’s policy “may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here,” the majority asserted. In other words, Trump might fail to carry out his scheme, which would spare the plaintiffs any injury. Moreover, if the president only excludes a subset of immigrants, like ICE detainees, the plan might not “impact interstate apportionment.”
The court also found that the case “is riddled with contingencies and speculation,” declaring that “any prediction how the Executive Branch might eventually implement” Trump’s policy is “no more than conjecture.” As a result, “the case is not ripe,” and the plaintiffs must come back when they can contest a more explicit policy. The court clarified that “we express no view on the merits of the constitutional and related statutory claims presented.”
Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, wrote an incensed dissent accusing the majority of dragging its feet for no good reason. Breyer insisted that the plaintiffs plainly have standing: “The harm is clear on the face of the policy,” he wrote, whose stated goal is “to diminish the ‘political influence’ and ‘congressional representation’ of States ‘home to’ unauthorized immigrants.” As a rule, plaintiffs need only show “substantial risk” of future harm to establish standing. Here, the Trump administration’s “current plans suggest it will be able to exclude a significant number of people under its policy.” The administration “still does not disclaim its intent to carry out the policy to the full extent it can do so” and remains “committed to excluding as many people as possible.” It should not be able to exploit “lingering uncertainty” over its precise plans to avoid an adverse ruling.
“Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal,” Breyer wrote, “this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.” Breyer also sided with the three lower courts that found the policy to be unlawful. This question, he wrote, “is not difficult.” Federal law compels apportionment based on “persons,” not citizens. “From the founding era until now,” the justice wrote, “enumeration in the decennial census has always been concerned with residency, not immigration status.” When Congress passed the modern census act, it rejected proposals to count only citizens, instead siding with the constitutional requirement to count all persons. Throughout American history, the “uniform view” is that residents of the country get counted, and immigrants qualify as residents, regardless of their immigration status.
In a blunt conclusion, Breyer laid out the threat to democracy posed by this case. “The modern census emerged from periods of intense political conflict, whereby politicians sought to exploit census procedures to their advantage.” In passing the modern census law in 1929, “Congress sought to address that problem by using clear and broad language that would cabin discretion and remove opportunities for political gamesmanship. History shows that, all things considered, that approach has served us fairly well. Departing from the text is an open invitation to use discretion to increase an electoral advantage. This produces the hostility that the 1929 Congress sought to resolve.”
Breyer’s position on the merits may yet win out. He is so obviously correct that even Barrett and Kavanaugh sounded skeptical of the Trump administration’s position during oral arguments. Yet it seems the conservative supermajority wants to duck this politically charged case as long as it can. Perhaps several justices averse to political controversy, including Chief Justice John Roberts, hope the dispute will disappear if the bureau takes too long and Biden abolishes the policy before it is executed. Either way, the court’s decision preserves the threat of nativist and illegal apportion of House seats. It gives Trump one last opportunity to manipulate the census and leaves the door open for future politicians to try to rig the count.
Friday’s ruling also entrenches a new rule that emerged after Barrett replaced Justice Ruth Bader Ginsburg: Plaintiffs only have standing when they are challenging a policy that the conservatives do not like. In November, by a 5–4 vote, the ultraconservatives blocked a COVID-19 restriction on New York City churches that was no longer in effect. As Roberts explained in his dissent, the restrictions were not in force when the court issued its decision. Yet the court blocked them anyway, reasoning that the governor might enforce them again in the future.
It is difficult to square that decision with Friday’s census punt. Trump has stated his policy in stark terms and directed the government to execute it as soon as possible. There is a serious, looming threat that his administration will carry it out in the near future. No one actually knows whether Biden or Congress can reverse the policy after it has been implemented. Yet the conservative justices still considered the case premature. This inconsistent approach gives the impression that at least five conservative justices are manipulating the rules to roll back blue states’ COVID orders while giving Trump leeway to test out illegal policies. Friday’s decision is not the end of this litigation, and the administration may ultimately fail to rig the apportionment of House seats. It is framed as a modest, narrow, technical decision. But the court has revealed its priorities, and they have nothing to do with restraint.