The United States Supreme Court on December 18, 2020, rejected a lawsuit challenging the Trump administration’s plan to keep undocumented immigrants out of the census count. This gave the administration a partial victory, which could be temporary. The Supreme Court ruled 6-3, delivering a blow to the Democrats and immigration advocates. If the policy moves forward, it can likely be challenged again.

Excluding Undocumented Immigrants From Census Count

Twenty-three states, along with immigrant rights advocates and other groups, challenged President Trump’s census directive in Court. This was blocked by the lower courts, stating that the directive violated the Constitution, federal census statutes, or both. The Supreme Court had previously struck down the Trump administration’s attempt to include a citizenship question that could have dissuaded immigrants from participating.

In July, the Trump administration announced for the first time its plan to exclude undocumented immigrants from the census count used to determine congressional seats. This would result in Democratic areas with large immigrant populations losing seats in Congress. This decision came after many lower courts had opposed this policy, ruling that it breaks constitutional and court precedent that “apportionment must be based on all persons residing in each state, including undocumented immigrants.”

Supreme Court Denies Trump Administration’s Challenge

The Supreme Court held that it was “premature” for this issue to be decided, given the potential issues [of determining how many people live undocumented]. The Court ruled that the policy can be realistically “implement[ed] in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here.” The Court did not rule on the merits of excluding undocumented immigrants from the census count; they threw the challenge out based on lack of standing and ripeness.

The dissenting opinion was written by Justice Stephen Breyer, joined by Justices Elena Kagan and Sonia Sotomayor. Justice Breyer noted his uncertainty over Trump’s policy, stating that “[it] does not warrant our waiting to decide the merits of the plaintiff’s claim.” The government’s policy “is unlawful, and I believe this court should say so.” Justice Breyer further noted that the administration “is committed to excluding as many people as possible…and there is a ‘substantial risk’ that it will be able to do so to the point that it causes significant harm.” The dissenting justices asserted that undocumented immigrants cannot be excluded from the census because the Constitution requires that the census include a count of “the whole number of persons in each state.”

Practical Difficulties in Implementation

The Census Bureau has expressed concern that they might not be able to deliver the results of the census count before the December 31 deadline, or even before President Trump leaves office. This could potentially make the matter moot without having the census results of the appropriate count of immigrants. Once President-elect Joe Biden is inaugurated, he can roll back the Trump administration’s policy. There is also a possibility that the Democrats in Congress could reject any census tally Trump submits if it excludes undocumented immigrants.

The American Civil Liberties Union tweeted Friday that they will continue to oppose this policy in court. Justice Sotomayor commented that the decision would likely result in “hundreds of thousands of people left uncounted.” Sotomayor said that “The harms caused by rushing this year’s census count are irreparable. And Respondents will suffer their lasting impact for at least the next 10 years.”