SINCE THE dawn of Donald Trump’s presidential campaign in 2016, opposition to immigration has been his loudest and most persistent message. In office, he has converted anti-immigrant politics into policy. About half as many migrants are reaching America four years after Mr Trump began limiting legal immigration. Asylum and refugee admissions have been sharply curtailed, too. Unauthorised immigrants have been particularly unwelcome in Mr Trump’s America, though the judiciary has resisted some of his moves.
Last summer the Supreme Court blocked Mr Trump’s attempt to scrap Deferred Action for Childhood Arrivals, a programme preventing the deportation of immigrants brought to America as children. It also declined to help the administration fight “sanctuary cities”, jurisdictions where local authorities limit co-ordination with federal authorities enforcing immigration rules. A year earlier the justices had told Mr Trump he could not add a citizenship question to the 2020 census—a query that could have deterred both legal and undocumented immigrant families from completing the questionnaire.
With only 51 days left in the Oval Office, Mr Trump has another opportunity to push his nativist agenda—and this time his move could alter the balance of power in Congress for the coming decade. But, again, the Supreme Court gets the final word. In Trump v New York, to be argued on November 30th, the court will scrutinise the outgoing president’s novel attempt to change how seats in the House of Representatives—and therefore electoral votes for upcoming presidential elections—are divided up among the states. Billions of dollars of federal funding could be at stake, too.
Federal law charges the Secretary of Commerce with sending decennial census data to the president by December 31st. The note must contain “the tabulation of total population by states” so that the president can, by January 10th, send a report to Congress laying out “the number of representatives to which each state would be entitled”. Until 2020 there was no question as to who counted for representation: all people “inhabiting” the state, irrespective of immigration status. But in July Mr Trump released a memorandum announcing that “aliens who are not in a lawful immigration status” would be excluded from the “apportionment base” used to calculate each state’s share of the 435 House seats. Accordingly, the memorandum directs the commerce secretary—”to the extent practicable”—to list each state’s total population minus the number of undocumented immigrants.
Why the change? Mr Trump argues that keeping some 12m aliens out of the mix is “more consonant with the principles of representative democracy underpinning our system of government”. Citing the “perverse incentives” of current rules, the memo asserts: states that “hobble federal efforts to enforce the immigration laws” should not be rewarded by augmenting their representation in Congress.
Once more, Mr Trump is citing democratic principles to weaken Democratic-leaning states. In 2018 the administration claimed its move to add a citizenship question to the census was designed to better enforce the Voting Rights Act of 1965—a law protecting minority voters from discrimination at the polls. This rationale was suspicious from the start, as Republicans had sought to undermine the law in the courts for decades and managed to weaken it greatly in Shelby County v Holder, a 2013 Supreme Court decision. Evidence later emerged that the real objective was to dampen response rates among immigrant households and shift power to Republicans. Now the Trump team is more transparent about its aim. “[O]ne state is home to more than 2.2m illegal aliens”, the memo reads. If those unauthorised immigrants were to be included in the population base, the state would get “two or three more congressional seats than would otherwise be allocated”.
The unnamed state that stands to lose House seats under Mr Trump’s new calculus is California, which is overwhelmingly Democratic and has 53 representatives in the House. But the advantage to Republicans may not be as great as Mr Trump hopes: Texas and Florida, which both lean towards Republicans, stand to lose a seat each, according to a Pew study, whereas Minnesota, Alabama and Ohio (a mixed partisan bag) may profit from the revised formula.
A number of immigrant-rights organisations, and some states led by New York, sued to block Mr Trump’s policy. In September a special three-judge district court in the Southern District of New York sided with the plaintiffs, finding that the Census Act and Reapportionment Act, both in force since 1929, require that census data—and census data alone—inform the allotment of congressional seats. The court also ruled that these laws prohibit the president from excluding illegal aliens from the population base. “The ordinary meaning of the word ‘person’ is ‘human’ or ‘individual’”, the judges wrote, “and surely includes citizens and non-citizens alike”. The Trump administration had argued that visiting diplomats, business travelers and tourists are excluded from the census, so immigrants could be, too. These examples are not “remotely convincing”, the court held. For these individuals, in contrast to immigrants who have made America their home for years, “the United States is not their ‘usual residence’”.
With the December 31st deadline approaching, the Supreme Court agreed to expedite Mr Trump’s appeal. Mr Trump’s lawyers say the president is the “ultimate decision-maker” on apportionment and “retains discretion to make policy judgments”. They point to a 1992 Supreme Court case, Franklin v Massachusetts, for support. In response, challengers rely on both federal law and the Fourteenth Amendment, which says House seats must be apportioned according to states’ “respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Since untaxed Indians are mentioned as a carve-out, the plaintiffs say, the framers clearly meant to include everyone else in the census count.
The Trump administration’s arguments on the merits of the policy are strained; the challengers seem to have the law and history on their side. But that may not end up mattering. In order to sue, plaintiffs need to show that a policy causes them a specific harm: a threshold requirement known as “standing”. In September the lower court found that the exclusion of undocumented persons would have a “chilling effect on census participation”, which constituted tangible harm. But the census count ended in mid-October, removing that hook for standing. The plaintiffs have other claims—including the risk of losing federal funds or seats in Congress—but those were too speculative and remote in the district court’s eyes.
The Supreme Court may dismiss the case for the same reason, which would allow Mr Trump to proceed with his scheme. But such a win could be temporary: once the president sends Congress his apportionment plan, states that stand to lose seats would have a solid case for standing and might renew the lawsuit. The plan could be thwarted in other ways: by Census Bureau delays in reporting the raw numbers, by the difficulty of reckoning the number of illegal aliens or by the incoming Biden administration that may try to reverse the exclusion. Undaunted, Mr Trump is keeping up his fight to make an unprecedented and lasting mark on the political landscape before he leaves office.