Court rules challenge to Trump census plan is premature
By Mark Sherman
Associated Press
WASHINGTON (AP) — A divided Supreme Court has dismissed as premature a challenge to President Donald Trump’s plan to exclude people living in the country illegally from the population count used to allot states seats in the House of Representatives.
The court’s decision last Friday, led by its conservative justices, is not a final ruling on the matter and, while it allows Trump to pursue the plan for now, it’s not clear whether he will receive final numbers from the Census Bureau before he leaves office next month.
If the president still has not received final census numbers by the time Joe Biden takes office Jan. 20, Trump’s plan will be effectively dead because Biden is extremely unlikely to pursue it. It’s also possible the Biden administration would take steps to try to reverse decisions made under Trump.
For now, though, the high court said it was too soon to rule on the legality of Trump’s plan because it’s not yet clear how many people he would seek to exclude and whether the division of House seats would be affected.
The court said in an unsigned opinion that “we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.” At least five of the court’s six conservative justices had to join the opinion to make a majority on the nine-member court.
The three liberal justices dissented, saying the effort to exclude people in the country from the population for divvying up House seats is unlawful.
“I believe this Court should say so,” Justice Stephen Breyer wrote, joined by Justices Elena Kagan and Sonia Sotomayor.
It’s not clear that last Friday’s decision will have much practical effect. Documents leaked to the House committee that oversees the Census Bureau suggest the apportionment numbers won’t be ready until after Jan. 20, when Trump leaves office and Biden becomes president. The Census Bureau has acknowledged the discovery of data irregularities in recent weeks that put the Dec. 31 deadline in federal law for transmitting numbers to the president in jeopardy.
Dale Ho, the American Civil Liberties Union lawyer who argued the case for the challengers, said the decision was about the timing of the case, not whether the plan complies with federal law.
“This ruling does not authorize President Trump’s goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives. The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress. If this policy is ever actually implemented, we’ll be right back in court challenging it,” Ho said.
No president has tried to do what Trump outlined in a memo in July — remove millions of noncitizens from the once-a-decade head count of the U.S. population that determines how many seats each state gets in the House of Representatives, as well as the allocation of some federal funding.
States with large populations of people who are in the country illegally could lose seats in the House under Trump’s plan, and the president signaled in his memo that punishing states that “encourage illegal aliens” is one reason he issued it.
By the administration’s estimate, California could lose two to three House seats if people living in the country illegally were excluded based on what the administration said are more than 2 million such California residents.
His administration has defended his authority to exclude at least some people living in the country illegally, including perhaps people who are in immigration detention or those who have been ordered to leave the country.
But during arguments last month, acting Solicitor General Jeffrey Wall, Trump’s top Supreme Court lawyer, would not rule out larger categories of immigrants, including those who have protection from deportation under the DACA program.
“We can’t be certain at this point, and we don’t know what the president will decide to do with respect to that,” Wall said.
Meanwhile, administration opponents have raised other questions about its conduct of the census.
In a lawsuit in California that originally challenged a shortened head count by the Commerce Department, a coalition of cities, counties and advocacy groups are fighting the Trump administration for documents showing how the Census Bureau is processing the data it collected in only half the time originally planned.
The Democratic-controlled House Committee on Oversight and Reform recently subpoenaed Commerce Secretary Wilbur Ross, who oversees the Census Bureau, for documents over data anomalies found in the numbers that jeopardizes the Dec. 31 deadline for turning in the apportionment numbers to the president. The committee’s chairwoman, U.S. Rep. Carolyn Maloney of New York, accused Ross of withholding documents not only from Congress but the Government Accountability Office, which acts as a watchdog on the agency.
The census case likely is the last of several major cases involving immigrants during Trump’s presidency, which has been notable for its hard line on immigrants.
The president has a mixed record at the high court on immigration. The justices upheld his ban on travel to the U.S. by residents of some largely Muslim countries. But the court shot down his attempt to end the Deferred Action for Childhood Arrivals programs and blocked his bid to add a citizenship question to the census for the first time in 70 years.
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Associated Press writer Mike Schneider contributed to this report from Orlando, Florida.
Court denies Kentucky religious school’s plea to reopen
By Mark Sherman and
Piper Hudspeth Blackburn
WASHINGTON (AP) — The Supreme Court on Thursday refused to block an order by Kentucky Gov. Andy Beshear that bars in-person K-12 education until early January in areas hard hit by COVID-19, rejecting a plea from a private religious school.
The court said in an unsigned opinion that Beshear’s order will effectively expire at the end of the week anyway because schools are about to begin their Christmas vacation and can open again in early January. A ruling against the state “would have little practical effect,” the court said.
Justices Samuel Alito and Neil Gorsuch dissented. Gorsuch noted that the governor issued a separate order allowing “virtually all other in-person activities to continue with only capacity restrictions. Movie theaters, indoor wedding venues, bowling alleys, and gaming halls remained open for business.”
The Danville Christian Academy had sued Beshear after he announced the closures in November in response to increased cases of COVID-19 around the state. His order applied to both public and private schools. The county that Danville Christian Academy is located in has one of the highest coronavirus incidence rates in the state, at 113.6 cases per 100,000 residents.
The school said it was being treated unfairly under Kentucky law and the U.S. Constitution. A district court agreed, blocking the order, but the federal appeals court in Cincinnati, Ohio, allowed Beshear’s order to remain in effect.
Beshear said all schools were treated alike. Speaking at a news conference in Kentucky around the time the court ruled, he said: “In no way were religious schools treated any differently, we asked everybody to make the same sacrifice.”
Kentucky continues to reel from the pandemic. The governor last Thursday announced a record 54 new confirmed COVID-19-related deaths and 3,349 new confirmed coronavirus cases. Hospital capacity for ICU beds is at or above 80% in four parts of the state.
Kelly Shackelford, president and chief counsel of First Liberty Institute, the law firm that represented Danville Christian Academy, vowed to take the governor to court again if the order was reinstated.
“Rest assured, if the Governor does so on Jan 4th, we will file against him immediately,” Shackelford said in a statement.
Kentucky Attorney General Daniel Cameron echoed Shackleford’s warning in a statement last Thursday evening, urging the governor to “carefully consider future executive action related to religious schools.”
Last Monday, Beshear had announced new public health guidance for in-person learning in counties with high COVID-19 rates. Schools that comply may resume in-person learning on Jan. 11.
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Hudspeth Blackburn is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
