The Supreme Court has recently announced it will be reviewing a number of cases with significant implications for immigrants, the Latino community, and states with large immigrant populations. The cases will decide on the Trump administration’s plan to exclude undocumented immigrants from calculations for congressional seats, the “Remain in Mexico” policy, and the border wall.
Last Friday, the Court announced it will be holding hearings on the Trump administration’s attempt to exclude undocumented immigrants in congressional seat apportionment on November 30. If judge Amy Coney Barrett is confirmed by then, the case will be heard by a nine-member court, with a 6-to-3 conservative majority.
Trump’s unprecedented proposal involves the Constitution’s 14th Amendment mandate that apportionment of seats to the House of Representatives be based on the “whole number of persons in each State.” This has historically been interpreted to mean the entirety of a state’s residents, without regard for their legal status. This summer, however, the Trump administration issued a memorandum trying to change that and make it the policy of the United States to “exclude from the apportionment base aliens who are not in a lawful immigration status.” A coalition of 22 states, the District of Columbia, the United States Conference of Mayors, 15 additional cities and counties, and the ACLU immediately challenged the policy.
The exclusion of undocumented immigrants would have serious consequences in shifting political power, in both House and electoral college seats, from urban states with large immigrant populations, like New York or California, to more rural and typically Republican leaning states. Additionally, it would shift billions of federal funds away from the former group.
This policy is the latest in a series of attempts by the Trump administration to discount undocumented immigrants from the overall population count. In 2019, the Supreme Court rejected his plan to add a citizenship question to the census, which would have discouraged participation by immigrants, according to experts. In a 5-4 opinion, Chief Justice Roberts called the Trump administration’s rationale “contrived.” Without a citizenship question in the census, it remains unclear how, as a practical matter, the new policy would be accomplished.
In this case, a three-judge panel in New York, two nominated by President George W. Bush and one by President Barack Obama, already rejected Trump’s memorandum, calling it “an unlawful exercise of the authority granted to him” by Congress. The panel blocked the Commerce Department from including data on the number of undocumented immigrants in their reports to the president, who then uses these figures to determine apportionment. “Legislative history and settled practice confirm our conclusion that ‘persons in each state’ turns solely on residency, without regard for legal status,” they added. The Supreme Court will now weigh in on their decision, either affirming or reversing the panel’s action.
Additionally, the Supreme Court announced this week that it will also hear cases involving Trump’s “Remain in Mexico” policy and on his controversial border wall along the southern border, two of his attempts to limit immigration. These cases are likely to be heard well after the November election, and would become moot if the president lost reelection.
The first of the cases will review the 9th U.S. Circuit Court of Appeals early 2020 ruling that forced the Trump administration to halt its policy of making thousands of asylum seekers remain in Mexico until the United States processed their claims. The Supreme Court previously allowed the policy to remain in effect in March as litigation continued. 11 asylum-seekers who were forced to return to Mexico filed the lawsuit through the ACLU that will now be taken up by the Court.
The second case, Trump v. Sierra Club, will decide on whether the administration may continue to use military funding to build Trump’s long-promised southern border wall. Billions of dollars had been frozen for this use by lower courts, and in 2019 the Supreme Court granted a stay that allowed the administration to spend Defense Department funds to build parts of the wall. The Supreme Court will now decide on California and Texas federal judge rulings against the usage of these funds, who ruled that the president could not relocate money that Congress had appropriated for other purposes.