Trump Loses Census Case

It will, however, be appealed to SCOTUS.

The Trump administration had long tried to use this year’s census as a means of furthering its anti-immigrant philosophy. For example, it has already lost a fight to put a citizenship question in the survey. Now the administration has lost a court case to exclude undocumented immigrants from the decennial count. Via NPR: Court Blocks Trump’s Attempt To Change Who Counts For Allocating House Seats.

A special three-judge court in New York on Thursday blocked the Trump administration’s efforts to make an unprecedented change to who is included in the census numbers that determine each state’s share of seats in Congress.

The president, the court concluded, cannot leave unauthorized immigrants out of that specific count.

The decision comes after the July release of a memorandum by President Trump that directs Commerce Secretary Wilbur Ross, who oversees the U.S. Census Bureau, to provide Trump with information needed to exclude immigrants who are living in the United States without authorization from the apportionment count.

The panel of judges — including U.S. Circuit Judge Richard Wesley, Circuit Judge Peter Hall and District Judge Jesse Furman — noted the president does have some direction over the census and how the results of the count are used for reapportionment. But that authority, which is delegated from Congress, is limited.

The Constitution is pretty straightforward. From Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The Constitution of the United States orders a count of “free persons” and excludes only certain native Americans, and includes the infamous three-fifths clause (which is now dead letter due to amendment).

There is no provision to differentiate between citizens and non-citizens, let alone between immigrants of differing legal status.

From a plain letter point of view, this is pretty straightforward.

The law authorizing this process is even clearer (back to the NPR story):

A “tabulation of total population” is what the commerce secretary is directed to report to the president from the once-a-decade census, under Title 13 of the U.S. Code. According to Title 2, the president, in turn, is supposed to hand off to Congress “a statement showing the whole number of persons in each State.”

It is hard to take an originalist view of this or a plain letter view and not see that the Trump administration is simply incorrect. The clear goal is the count everybody.

Interestingly, there are red states who are not on Trump’s side of this fight:

Fearing the loss of a House seat after the 2020 census, the state of Alabama is leading an ongoing case that was filed in 2018 to try to force the Census Bureau not to include unauthorized immigrants in the apportionment count.

Of course, this is not the end of this:

The ruling in New York may be appealed directly to the U.S. Supreme Court. Federal law allows decisions by a three-judge court — which are convened for lawsuits challenging the constitutionality of how congressional seats are reapportioned among the states — to skip review by an appeals court.

Quite frankly, I don’t see how this isn’t a 9-0 ruling against the administration.

And this is not the administration’s only attempt to affect the process:

In addition to this legal fight over who counts for reapportioning House seats, the bureau is embroiled in lawsuits over the Trump administration’s directive to shorten the 2020 census schedule — already disrupted by the coronavirus pandemic — to make sure the president receives the apportionment count by Dec. 31.

FILED UNDER: Donald Trump, U.S. Constitution, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. OzarkHillbilly says:

    Living in a red area of a red state, I know there are *hidden* communities of undocumented immigrants living here that our economies are dependent upon. I don’t know if the numbers add up to be a difference maker in the census or not but considering our numbers out here it would not surprise me in the least if they did.

    *hidden*- they’re not hiding, just not advertising themselves. The local grocery store in Cuba has a rather extensive Mexican/Latino food aisle with a wide variety of peppers I never see in our local Walmart, and I don’t think I’ve ever walked the aisles of that store without hearing Spanish at some point.

  2. Blue Galangal says:

    Quite frankly, I don’t see how this isn’t a 9-0 ruling against the administration.

    Well, Thomas will say that the founding fathers’ intent was to count white male property owners, and Kavanaugh will say that the law is what Trump says it is. He might get Alito to go along with him. Roberts will furrow his brow and say it’s hard to say what the appeals court intended, or the founding fathers, and direct the appeals court to examine the documentation pertaining to the Reconstruction amendments. Depending on Gorsuch, it could be 6-3 or 5-4.

  3. Michael Cain says:

    @Blue Galangal: Most probable outcome: unsigned order denying cert, and the decision stands. Roberts appears to have reached the point of saying, “Guys, you at least have to make an effort at providing an argument.”

  4. Blue Galangal says:

    @Michael Cain: You are right, of course. My response was 98.7% tongue in cheek.

  5. Bill says:

    @Michael Cain:

    Most probable outcome: unsigned order denying cert, and the decision stands.

    That’s my opinion too and I was going to write something similar but I had a doctor’s appointment this morning.

  6. DrDaveT says:

    @Michael Cain:

    Most probable outcome: unsigned order denying cert

    True, but it would be so much more productive to slap it down 9-0*, provoking a spittle-flecked tweetstorm from Trump about “his” justices being “disloyal”. That might even be enough to nudge a few future opinions in the direction of sanity.

    *Or 8-1 with Thomas dissenting. That might be even more entertaining, in the long run.

  7. Bob@Youngstown says:

    Of course the Trump administration will be appealing. Anything to delay the game.

    Next up, Trump appeal to SCOTUS to challenge gravity!

  8. wr says:

    @Bill: “That’s my opinion too and I was going to write something similar but I had a doctor’s appointment this morning.”

    Sure you did. Do you have a note?

  9. Bill says:


    Sure you did. Do you have a note?

    I have one right here.

    The nurse said as she took my pulse- “Either you’re dead or my watch has stopped.”

    An x-ray of my head was taken. My doctor wrote- “Nothing was found.”

  10. HarvardLaw92 says:

    The real question before us here is whether SCOTUS, presuming it is even inclined to grant cert (which may happen, given that cert only requires four votes), acts to quash the permanent injunction issued by the lower court – which I do not expect it to do.

    The admin can pursue its appeal with SCOTUS to its heart’s content, but it will remain debarred from excluding these people until, and unless, SCOTUS explicitly permits it to do so (by staying the injunction) during the pendency of its appeal.