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Supreme Court kicks can down the road on Trump Census plan to exclude illegal aliens from House apportionment

Supreme Court kicks can down the road on Trump Census plan to exclude illegal aliens from House apportionment

Dismisses challenge for lack of standing, but seems to suggest illegal aliens cannot be excluded at such point as the Executive branch takes future action.

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The U.S. Supreme Court (6-3) has dismissed a challenge to a Trump administration plan to exclude counting illegal aliens in the part of the Census count for congressional redistricting purposes. One of the grounds for dismissal was, wait for it, lack of standing.

The Opinion was per curiam, meaning is was issued in the name of the court not by an individual Justice, with Breyer, Kagan, and Sotomayor dissenting.

Here is how the Court summarized procedural history:

This past July, the President issued a memorandum to the Secretary respecting the apportionment following the 2020 census. The memorandum announced a policy of excluding “from the apportionment base aliens who are not in a lawful immigration status.” 85 Fed. Reg. 44680 (2020). To facilitate implementation “to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report, “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.” Ibid. The President directed the Secretary to include such information in addition to a tabulation of population according to the criteria promulgated by the Census Bureau for counting each State’s residents. Ibid.; see 83 Fed. Reg. 5525 (2018).

This case arises from one of several challenges to the memorandum brought by various States, local governments, organizations, and individuals. A three-judge District Court held that the plaintiffs, appellees here, had standing to proceed in federal court because the memorandum was chilling aliens and their families from responding to the census, thereby degrading the quality of census data used to allocate federal funds and forcing some plaintiffs to divert resources to combat the chilling effect. ___ F. Supp. 3d ___, ___–___, 2020 WL 5422959, *13–*15 (SDNY, Sept. 10, 2020) (per curiam). According to the District Court, the memorandum violates §141(b) by ordering the Secretary to produce two sets of numbers—a valid tabulation derived from the census, and an invalid tabulation excluding aliens based on administrative records outside the census. Id., at ___, 2020 WL 5422959, *27. The District Court also ruled that the exclusion of aliens on the basis of legal status would contravene the requirement in §2a(a) that the President state the “whole number of persons in each State” for purposes of apportionment. Id., at ___, 2020 WL 5422959, *32. The District Court declared the memorandum unlawful and enjoined the Secretary from including the information needed to implement the memorandum in his §141(b) report to the President. Id., at ___, 2020 WL 5422959, *35. The Government appealed, and we postponed consideration of our jurisdiction. 592 U. S. ___ (2020).

The Court found no standing to sue:

A foundational principle of Article III is that “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U. S. 85, 90–91 (2013) (internal quotation marks omitted). As the plaintiffs concede, any chilling effect from the memorandum dissipated upon the conclusion of the census response period. The plaintiffs now seek to substitute an alternative theory of a “legally cognizable injury” premised on the threatened impact of an unlawful apportionment on congressional representation and federal funding. Id., at 100. As the case comes to us, however, we conclude that it does not—at this time—present a dispute “appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 573 U. S. 149, 157 (2014) (internal quotation marks omitted)….

At present, this case is riddled with contingencies and speculation that impede judicial review. The President, to be sure, has made  lear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of policy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).

This is being viewed as a Trump victory, but note what SCOTUS said — it all depends on what the Executive branch decides to do in the future, and SCOTUS seems to suggest illgal aliens cannot be excluded at such point as the Executive branch takes action:

And as the Government recognizes, Tr. of Oral Arg. 39, any such changes must comply with the constitutional requirement of an “actual Enumeration” of the persons in each State, as opposed to a conjectural estimate. See Utah v. Evans, 536 U. S. 452, 475–476 (2002); see also 13 U. S. C. §195. Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner. See Reply Brief 4–5. Uncertainty likewise pervades which (and how many) aliens the President will exclude from the census if the Secretary manages to gather and match suitable administrative records. We simply do not know whether and to what extent the President might direct the Secretary to “reform the census” to implement his general policy with respect to apportionment. Franklin, 505 U. S., at 798….

Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status. Tr. of Oral Arg. 20, 63–64. Yet the only evidence speaking to the predicted change in apportionment unrealistically assumes that the President will exclude the entire undocumented population.

If the Executive branch is Biden-Harris, this will all be moot. They will count everyone for all purposes, a reversal of Trump policy. So by denying standing, SCOTUS effectively kicked the can down the road never to see the case again unless the current politics takes a dramatic turn by January 20.


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That this is even debatable, that illegals should be counted for apportionment of Congressional seats and benefits, is insane. Is there any other country that does this?? What our progressive left demand.. that they get to have open borders, give welfare and drivers licenses to illegals, school, welfare.. and political clout. All at direct odds with US Citizens.

    Paul in reply to RobM. | December 18, 2020 at 1:54 pm

    “Fair Your Fair Share, you racist pig!” they screech.

    notamemberofanyorganizedpolicital in reply to RobM. | December 18, 2020 at 3:20 pm

    Time to declare all of those Communist Democrat Party Progressives Leftists Liberals et. al. NON-citizens!

    Snark or Not……

    I am not a lawyer.

    Perhaps someone here who is can explain this dichotomy to me:

    The 14th Amendment specifies that representation shall be apportioned based on “the whole number of persons in each state, excluding Indians not taxed.”

    Not “citizens” – “persons”. The very same amendment specifically addresses citizens in section one so the authors of the Amendment clearly understood that there is a difference.

    BUT, the next part of section 2 says that if any males over the age of 21 are not allowed to vote, representation is to be reduced proportional to the number of age 21+ males not allowed to vote.

    So, it seems to me that any males under the age of 21 and all women, regardless of citizenship status, should be counted.

    Males over 21 who are felons or non-citizens shouldn’t be counted because they can’t vote, but otherwise, every other “person” counts (except for “Indians not taxed”).

    The 19th Amendment guaranteed women the right to vote, and the 26th Amendment set the voting age to 18, but neither addressed the rules for apportionment.

    So…what is the legal justification for not counting non-citizen females and males under the age of 21? I’m not seeing it here. Am I missing something?

    From what I can see, if we don’t want to count them, we need to Amend the Constitution, just trying to wish away the wording of the 14th Amendment isn’t the right way to do things.

      dystopia in reply to Sailorcurt. | December 18, 2020 at 7:25 pm

      Illegal Aliens don’t vote. They are also 21. Spontaneous Constitutional Amendment has turned the word males into people.

        You don’t need to be a lawyer to understand the laws in our former country are null and void – except for you and I.

        After Roberts was recently busted giving in to rioters instead of upholding our law, the Supreme Court is now the same bullshit as the FBI.

        Don’t concern yourself on interpretation of the laws for the greater good. They don’t apply anymore.

        Milhouse in reply to dystopia. | December 19, 2020 at 7:14 pm

        Legal aliens don’t vote either. And yet they are specifically included in the census and in representation. There’s no basis for distinguishing between legal aliens and illegal ones.

      Milhouse in reply to Sailorcurt. | December 19, 2020 at 7:11 pm

      You missed a key clause. “But when the right to vote […] is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the united states […]” then the state is penalized.

      As you correctly noted, the clause clearly distinguishes between “persons” and “citizens”, and clearly requires that representation be for all “persons”, and not merely “citizens”. A state is entitled to representation for the aliens who live there, just as it is for the women and children who live there, and for the adult male felons and rebels who are not allowed to vote. There is no basis for distinguishing between legal and illegal aliens.

      The penalty clause was necessary because there is no constitutional right to vote. The 14th amendment does not guarantee anyone a right to vote. And its framers were acutely aware of that. They could have written “states must allow black people to vote”, but they didn’t want to do that. At the time they felt that would intrude too much into states’ rights.

      So instead they said to the states, “You’re in charge of who can vote. If you don’t want black people to vote, you don’t have to let them. But, for every adult male citizen, who is not a felon or a rebel, whom you don’t let vote, you will pay a penalty. You will lose representation for that person.”

      They thought that would be enough to convince all the states to do the right thing, but it didn’t work. The Democrat states decided to keep their restrictive policies and pay the penalty. So Congress and the Republican states had to pass the 15th amendment, which explicitly says that while states can still restrict the franchise, they can’t do it on the basis of race, color, or having been a slave. This practically made the penalty clause of the 14th amendment moot, and as far as I know it has never been implemented.

        You are absolutely correct, I missed the statement that specified that they must be citizens to not be included, so the only “persons” that should be excluded for purposes of apportionment are felons who’ve lost the right to vote and “Indians not taxed”. Everyone else counts.

        I’m actually of the opinion that illegal aliens should not be counted for apportionment, but the fact is that’s not what the Constitution says. If we want that to be the case, we need to amend the Constitution. Just ignoring the text and demanding the outcome we want is a move of the left, not the right.

I wonder if the Founder Fathers ever thought of foreign people illegally benefiting from the goodness of the country/ Yes, I know the arguments for counting everyone (kudos to Milhouse) but still they are getting the benefits of citizenship without taking the legal channels. It will be more than moot with a Harris administration as it is an important building block to one party governance in perpetuity. Once the country is super-saturated, the only option is world governance to readjust population distrubution.

    notamemberofanyorganizedpolicital in reply to alaskabob. | December 18, 2020 at 3:21 pm

    How could our Founders even conceive of “Free Shi….”


    Free Crap for everyone in the world except if you are a U.S. Taxpayer when it took 2 to 3 months to get here on a slow boat?

    Milhouse in reply to alaskabob. | December 19, 2020 at 7:27 pm

    The founders had no concept of “illegal immigrant”. It never occurred to them that one day Congress would restrict immigration.

    In fact, Ilya Somin (whom in general I don’t agree with) makes a good point that nowhere in the enumerated powers, or anywhere else in the constitution, is Congress ever given a power to restrict immigration. It has the power to restrict international commerce, which would have included slaves, which is why Article 1 section 9 was needed to temporarily limit that power. But it is not given any power to restrict free immigration. The entire basis of modern immigration law is a Supreme Court decision from about 100 years later, which says that controlling immigration is an “inherent power” of the legislature, so it doesn’t have to be enumerated. Which under current jurisprudence makes that the law of the land, but it’s hard to see how an originalist can justify it.

    In any event, that answers your question. They would have said the entire category you’re discussing can’t exist. But that’s not the only category they would have been baffled by. They would also not understand the concept of “government benefits” being distributed based on the census. There weren’t supposed to be any of those either. The census was to figure out representation, and to apportion federal direct taxes, if congress ever enacts any. (Except that nobody now seems to know exactly what direct taxes are, or to understand how this apportionment is supposed to work, so that whole clause is moot.)

    hopeful in reply to alaskabob. | December 19, 2020 at 10:35 pm

    there wasn’t welfare and medicaid in 1776

Taxpayers should sue. They are the one’s damaged by having their votes diluted. Equal Protection clause ? Maybe this is a case that Union of Taxpayers can pursue on behalf of all taxpayers nationwide. This story highlights the importance of united taxpayers.

In today’s LI posting – “NYC Taxpayers Revolt” an organization called Union of Taxpayers calls for taxpayers to unite and fight back. It’s obvious that no politicians care about taxpayers. Politicians want to keep us in the dark and have us sit down, shut-up and open our wallet. It’s time we stand up.

    No one has standing. The court has spoken.

      randian in reply to irv. | December 18, 2020 at 6:48 pm

      Standing was so important to deny scrutiny of an obviously fraudulent election, but look at this dissent, where suddenly we should ignore standing when the interests of illegal aliens are involved.

        Milhouse in reply to randian. | December 20, 2020 at 2:14 am

        There is no comparison.

        All nine justices agreed that the plaintiffs in this case will have standing when and if the administration acts on the information Trump ordered it to gather, and actually adjusts the census figures it is to report to congress. Three justices thought it obvious enough where this is going that the plaintiffs could sue now; the others said they have to wait.

        In the Texas case all nine justices agreed that there is no possible way Texas could have standing. There is no judicially cognizable injury it could suffer. It’s not a matter of waiting; there’s nothing to wait for.

    Milhouse in reply to Ben Kent. | December 19, 2020 at 7:31 pm

    Taxpayers should sue. They are the one’s damaged by having their votes diluted.

    No, they are not. On the contrary, the constitution explicitly protects the right of non-taxpayers, not just to non-voting representation but to the vote itself. It is illegal to prevent anyone from voting just because they don’t pay any taxes. But even back when they couldn’t vote, they were always included in representation. If you don’t like it, go take it up with the founders, who explicitly wrote that in the constitution.

Connivin Caniff | December 18, 2020 at 1:24 pm

I disagree. Supreme Court could hear a suit by a Citizen or a State averring it unconstitutional to count illegal aliens as a part of the Census count for congressional redistricting purposes, at least under the 14th Amendment and/or Equal Protection grounds.

    Subotai Bahadur in reply to Connivin Caniff. | December 18, 2020 at 3:44 pm

    They COULD hear a suit on those grounds, but they WILL NOT hear a suit on those grounds by choice specifically to avoid granting equal protection to US citizens. The courts are now completely part of the Left.

    Subotai Bahadur

…and from twitter

Lin Wood
In discussing
in phone conversation in 8/19, Justice John Roberts stated that he would make sure “the mother f#*ker would never be re-elected.”

Roberts engaged in phone conversations with Justice Stephen Breyer discussing how to work to get Trump voted out.
1:25 PM · Dec 17, 2020·Twitter for iPhone

Why can’t the SCOTUS simply recognize that some cases matter because they touch on the foundation of our republic and then address those cases?

Why the heavy reliance on the technicalities? This case matters to every single person. Why not address it?

    notamemberofanyorganizedpolicital in reply to Dathurtz. | December 18, 2020 at 3:28 pm

    Because they are stupid.


    They spend all their time with their heads stuck up their
    clouds and have almost no experience with real citizens.

    Milhouse in reply to Dathurtz. | December 19, 2020 at 7:37 pm

    Because they have no power to hear cases that are not properly brought before them! That is the only real restriction on the judicial branch’s power, and it’s what prevents it from becoming a dictatorship.

    Judges can’t act just because they see things happening that they don’t like. They must sit passively and wait for someone with standing to bring a case before them. So long as everyone affected is happy with a situation, the judiciary cannot interfere.

John Roberts went with Bubba to Epstein’s island – how many times ?

    notamemberofanyorganizedpolicital in reply to Taxpayer. | December 18, 2020 at 3:28 pm


    Connivin Caniff in reply to Taxpayer. | December 18, 2020 at 4:31 pm

    Wouldn’t it be great if that could be proven. There is something weird about that guy. I get Uncanny Valley feelings when I see him.

    JusticeDelivered in reply to Taxpayer. | December 18, 2020 at 4:43 pm

    Perhaps another cause for impeachment?

    Milhouse in reply to Taxpayer. | December 19, 2020 at 7:39 pm

    None at all, that anyone knows of. You are simply making wild guesses. I could just as easily ask how many times you went, or how many times Trump went, or even how many times Prof J. went! In all three cases my foundation would be every bit as good as yours to ask that about Roberts. I.e. none at all.

Doubt they will find issue with Sundowner the Usurper allowing every illegal citizenship

Ducking its responsibilities seems to be the court’s main concern since Roberts took over as chief. What a disappointment he has been!

    notamemberofanyorganizedpolicital in reply to irv. | December 18, 2020 at 3:29 pm

    Of course, otherwise they wouldn’t have time to swallow all those Communist Chinese Spy Cocktails at those wild Orgies….

Roberts really, really hates Trump.

The peasants must never again be permitted to vote for the likes of him for POTUS again.

caseoftheblues | December 18, 2020 at 4:57 pm

Well looks like the Dems wont need to pack the court….looks like they already have a 6 or 7 majority now

Diversity. We need a SC that is not all lawyers. There needs to be one drill Sgt, one plumber and one hair stylist or the equivalent.

Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status

Everyone agrees? That’s a remarkably omniscient statement. What exactly is infeasible about Trump’s plan?

This ruling threw out a challenge to Trump’s Census plan. So now illegals cannot be included in the census! Trump wins! What am I missing?

    drednicolson in reply to Pasadena Phil. | December 18, 2020 at 7:47 pm

    It’s because of how they threw it out. It wasn’t judged on the merits, but on the grounds that there was no flesh-and-blood case to hear because what was challenged hasn’t happened yet.

    Like the line-item veto that was passed during Bush I, but couldn’t be challenged in court until it was actually used. Clinton attempted to use it, it was challenged, and SCOTUS ruled it unconstitutional.

    US Courts do not hear theoretical cases. For most matters I’d consider this a good thing, but when it comes to time-sensitive stuff like the census or elections, it’s allowed for some egregious and nigh unprecedented buck-passing.

    stablesort in reply to Pasadena Phil. | December 18, 2020 at 11:35 pm

    The court ruled that no one has standing until the Republicans redistrict their states. Then all illegal aliens become legal citizens with representation in our congress.

    They threw out a challenge because there is no plan yet. There’s only an order to develop a plan. The challenging states said whatever that plan ends up being, it’s bound to be illegal, and the court said, “how do you know?” You have to wait until there’s a plan, and then show exactly how it’s illegal. Which there’s no doubt it will be, but you can’t sue based on speculation.

    JusticeDelivered in reply to olhardhead. | December 19, 2020 at 12:34 pm

    This stuff needs to be published, trash Roberts credibility. Also, his picture needs to be circulated to all of those underage girls. Maybe they can tell us if he raped them. The girls can sue him, while the rest of get to see justice as this SOB ends up in jail.

    Milhouse in reply to olhardhead. | December 19, 2020 at 7:45 pm

    No, it’s not big, because it’s a load of bullshit. There’s no factual basis for it at all.

America is the home of the slaves. Everybody in the world is free to come here and help themselves to whatever they want. They’ll even have representation in our government.

America will last only until our wealth has been consumed…

    hopeful in reply to stablesort. | December 19, 2020 at 10:43 pm

    stable, that is how the Roman Empire went down. First they didn’t breed enough and had to import foreigners to do their work and man their armies (are you listening Mutter Merkel?)

    then the foreigners *living inside* turned on them and destroyed them.

    There’s only a few stories and they’ve all been told before.