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Here's a terrific preview of today's oral arguments at the Supreme Court in the latest census case. This time around, Trump is trying to exclude undocumented immigrants from the population count when apportioning seats in the House of Representatives. https://slate.com/news-and-politics/2020/11/trump-v-new-york-supreme-court-census-case-test.html
Today's SCOTUS case could be catastrophic, stripping federal representation from states with large immigrant populations for the next ten years.
But it could also end with a fizzle, because Biden might be able to undo Trump's anti-immigrant policy. A lot of uncertainty here.
But it could also end with a fizzle, because Biden might be able to undo Trump's anti-immigrant policy. A lot of uncertainty here.
Today's case could fizzle out in other ways. SCOTUS could find a lack of standing now, then hear the case on the merits after Trump screws up apportionment. It's also worth noting that the govt does not know how many undocumented immigrants live here—the policy is unworkable!
Note, too, that the Trump administration's policy is egregiously unconstitutional under the original meaning of the 14th Amendment, which plainly requires a count of total population. But originalists love ignoring the Reconstruction Amendments! https://slate.com/news-and-politics/2020/11/trump-v-new-york-supreme-court-census-case-test.html
Justice Breyer is SAVAGE, explaining to acting Solicitor General Jeff Wall why the Trump administration's policy is both illegal and unconstitutional. He sounds righteously angry that Trump is trying to sneak through racist, nativist census shenanigans AGAIN.
Alito suggests that the administration might only be able to identify ~60,000 undocumented immigrants. Sotomayor says: No, the policy excludes ALL undocumented immigrants, and the Census Bureau has been collecting this information for more than a year. It's way more than 60,000.
Kagan asks if Trump will exclude 700,000 DACA recipients from the census apportionment count. Acting Solicitor General Jeff Wall won't tell her. Kagan asks about the 3.2 million non-detained individuals in removal proceedings. Wall won't tell her. Kagan: "You're 30 days out!"
Several justices press Wall on the practical difficulties of excluding undocumented immigrants from the census apportionment count (which is impossible to do accurately). Wall won't give them a straight answer, which seems to frustrate the liberal justices and Roberts.
Kavanaugh is now summarizing the government's arguments that the case isn't ripe and the plaintiffs lack standing, then asking Wall if he described them correctly. He's probably looking for a way to dodge a ruling on the merits for now. Not sure four other justices will go along.
This is a surprise: Amy Coney Barrett begins by telling Wall that, as Breyer pointed out, "a lot of the historical evidence and longstanding practice really cuts against your position." She then suggests that excluding undocumented immigrants may go against Founding-era practice.
Barrett asks skeptically why undocumented immigrants who have lived in the U.S. for 20 years do not "reside" in the country for the purpose of census apportionment.
Barrett tells Wall flatly: "Illegal aliens have NEVER been excluded as a category from the census."
Barrett tells Wall flatly: "Illegal aliens have NEVER been excluded as a category from the census."
Barrett asks Wall skeptically if excluding undocumented immigrants from the census count was "an unexercised discretion all along."
Her questioning is over, and I THINK she sounds rather skeptical that Trump's policy is constitutional. But I'm still learning how to read her.
Her questioning is over, and I THINK she sounds rather skeptical that Trump's policy is constitutional. But I'm still learning how to read her.
This was very awkward: Roberts calls on Sotomayor, but Alito completely ignores him and asks another question—and another, and another ... until Roberts cuts in to call on Sotomayor. Alito tries to keep speaking, but Roberts cuts in AGAIN to call on Sotomayor. Oof.
Kavanaugh tells New York SG Barbara Underwood that, as Barrett noted, "you have advanced forceful constitutional and statutory arguments" that the "categorical exclusion" of all undocumented immigrants is unlawful. But he speculates that Trump might just exclude "subsets."
So at least five justices seem to recognize that excluding all undocumented immigrants from census apportionment is unconstitutional. But multiple justices are concerned about ripeness/standing—they say, is this case really ready for resolution if Trump hasn't done anything yet?
Specifically, Kavanaugh and Barrett have acknowledged that categorically excluding undocumented immigrants from census apportionment appears to be unlawful, but both seem skeptical that SCOTUS has the power to act until Trump has tried to implement the policy.
Now this is great lawyering: The ACLU's @dale_e_ho points out that an 1828 dictionary *cited by the government* actually demonstrates that "residents"—as understood at the Founding—included immigrants. He then cites the practice of federal marshals conducting the census in 1790.
Supporters of a fair census and just apportionment could not have a better advocate than @dale_e_ho. His arguments at the Supreme Court today—much like his arguments in the citizenship question case—are superb. He is a better originalist than the court's putative originalists.
Kavanaugh and Barrett are very concerned about the timing of this case. Both seem to think Trump won't categorically exclude all undocumented immigrants from census apportionment, but instead exclude some subset. So they think it might be too early to block the policy right now.
Arguments are over. Only Thomas and Alito seemed enthusiastic about the constitutionality of excluding undocumented immigrants from census apportionment. The other four conservatives mostly fretted that this case is premature, and Trump's policy can't be challenged yet. Messy.
Here's my main takeaway right now: @dale_e_ho is in the very top tier of attorneys who have argued before the Roberts Court. It is simply impossible to improve upon what he just did. Stellar, flawless advocacy—and this is only his second time arguing before SCOTUS.
Here’s Alito ignoring Roberts when he cuts in to call on Sotomayor, then ignoring Roberts AGAIN after a series of questions, forcing the Chief Justice to call on Sotomayor a third time. Extraordinarily rude behavior.
Here’s Amy Coney Barrett pointing out that excluding undocumented immigrants from census apportionment seems to go against an original understanding of the Constitution, as well as Founding-era practice.
Finally, here is the ACLU’s @dale_e_ho drinking the Trump administration’s milkshake with some help from the 1828 edition of Webster’s Dictionary.
A majority of justices seem to realize that Trump's nativist attempt to manipulate apportionment—which, by the way, is extremely important for both the House and the Electoral College!—violates the Constitution.
They might let him try it anyway. https://slate.com/news-and-politics/2020/11/trump-census-apportionment-barrett-supreme-court.html @Slate
They might let him try it anyway. https://slate.com/news-and-politics/2020/11/trump-census-apportionment-barrett-supreme-court.html @Slate
