Immigrant representation still up in the air

WASHINGTON—The Supreme Court on Friday chose not to rule on whether the White House can omit illegal immigrants from the final census data used to allot seats in the U.S. House of Representatives.

The Trump administration wants to send to Congress two sets of data: one with and one without illegal immigrants. He wants the latter to determine the apportionment of House seats. Because the Supreme Court prevented the Trump administration from adding a question about citizenship to the census itself, the administration will rely on various government agencies to estimate the portion of illegal residents in each state.

In the opinion, which was unsigned, the court dismissed the lawsuit against the administration’s plan as premature. The justices said no one knows yet how many people the data might exclude and whether it would affect the apportionment of House seats.

“Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented,” the court said.

The three liberal justices dissented, arguing that they should have decided the case against Trump. They noted that census numbers used to determine each states’ share of House seats included illegal immigrants in the past.

“The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so," Justice Stephen Breyer wrote in the dissent.

The decision allows the Trump administration to move forward but leaves the door open to readdress the question if another legal challenge arises after Congress receives the data.

One complicating factor: The Census Bureau might not send the final data set to Trump before the beginning of the Biden administration. The bureau has a deadline of Dec. 31, but some reports have said officials may not have the data ready before January.

If the administration forges ahead with excluding illegal immigrants from the data, expect a court challenge. American Civil Liberties Union lawyer Dale Ho, who argued the case before the Supreme Court, said “if this policy is ever actually implemented, we’ll be right back in court challenging it.”