Court Rightly Invalidates Trump Effort To Omit Non-Legal Immigrants From Apportionment

A unanimous three-judge court in New York this evening invalidated President Trump’s effort to get non-legal immigrants omitted from the census count that decides apportionment of House seats among the states. Trump’s effort was widely seen as an attempt to exclude from the count for apportionment of states’ House delegations the non-legal immigrants. 

The Trump effort might result, for example, in some states with “more” persons out of a legal immigration status, like California, relatively “losing” House seats and states with “fewer” such persons, like Indiana, relatively “gaining” House seats. “Losing” and “gaining” here refer not to shifts from one decade to the next, but to shifts from counting in 2020 the inclusive numbers versus the reduced numbers. (And these are just hypothetical for illustration; actual shifts could only be calculated from actual figures.)  

Critics said that, in effect, the Trump effort would give more seats to relatively Republican-leaning states and fewer seats to relatively Democratic-leaning states. The critics said it was partisan to a degree greater than past Presidents of either party. The court ruling would block that Trump effort.

The case is New York State v. Donald J. Trump. Its court based its 86-page ruling on the statutory, rather than constitutional, provisions about the census and apportionment. That ruling put forth an elaborately researched framework demonstrating that Congress had never intended that the President limit the apportionment figure in this way, and that the Executive Branch had understood the statutory provisions were not intended that he do so.

This dramatic ruling will next go to the Supreme Court, without any intermediate consideration by an appellate court.  It seems possible that the Supreme Court would quickly take up the court’s order.