SCOTUS case Trump v. New York pivotal to census outcomes By Dylan Bennett, Aaron Barsham, Alma Jasencic, Derek Corsner, Et. al.

While the President’s ineffective challenges to the election results were being rejected in lower courts, the Supreme Court was still taking up major points of policy for the Trump administration. On November 30, 2020 the Supreme Court heard oral arguments in the case Trump v. New York. This case will decide if undocumented migrants are included in population counting, as has previously been standard practice. With his administration’s time coming to an end, and the 2020 Census wrapping up, the Court’s decision could have far-reaching consequence that far outlive the current administration.

In the 2020 Census, President Donald J. Trump pushed heavily for multiple changes, some of which included the citizenship status of those answering the census and potentially not including those who are identified with no citizenship and/or no proper documentation to identify themselves as American citizens, thus the term “undocumented”, as part of the overall population of a given area. In his July 21, 2020 memorandum, President Trump asserts the notion that the United States Constitution “does not specifically define which persons must be included in the apportionment base”, and also argues that it is up to the executive branch of the federal government to make that assertion. New York, in a coalition with other states, sued the White House and President Trump on these potential changes, claiming that this memorandum and the changes it holds violates certain parts of the Constitution and other federal laws.

Photo from White House

The main concern for New York and their coalition regards the issue of how these types of changes, which would directly impact the way in which population is reported, may affect the outcome of the House of Representatives and the makeup of the Electoral College, where a lack of true population numbers or a population that was overcounted may lead to the addition or subtraction of districts unnecessarily. For some states, New York in particular, their total electoral college votes and representatives in Congress may be decreasing by one or two once the 2020 census has been counted, and thus, it is in their best interest to assure the numbers are being counted properly and are taking into account any person living within their jurisdiction. The White House and President Trump, on the other hand, have had a long-standing political agenda regarding undocumented immigrants, ranging from the promising of a border wall to keep undocumented immigrants from crossing the United States - Mexico border, to ramping up operations within the Immigrations and Customs Enforcement Agency, and much more.

The first question the Court addressed in oral arguments over the case was whether a group of local and state governments have legal standing to challenge Trump’s July 2020 memorandum on the 2020 Census changes. Standing is a legal requirement that the parties involved in a case are closely enough related to the central issue, are negatively affected by the policy in question, and that a legitimate judicial remedy is possible to address this harm. This arises out of the Article III requirements in the Constitution that courts hear cases and controversies involving real parties that can put forth an adequate challenge to a law or policy as violating the Constitution. The judicial powers are said to “extend to all cases” and be ruled on by the judicial system, even cases regarding “controversies between two or more states” and controversies “between a state and a citizen of another state.”

Photo from US Customs and Border Protection

The second question regards the problem this coalition of states is most concerned with: whether or not the memorandum that President Trump delivered to the Commerce Secretary regarding changes for undocumented immigrant counting in populations under the 2020 Census was a permissible use of power, was Constitutionally acceptable, and was within President Trump’s constitutional and legal power to do as the executive. The question in particular is within the wording of the Constitution, that uses the term “inhabitant” to describe those the executive is able to qualify, and President Trump’s argument is that the term “inhabitant” could also mean an individual living in the United States without documentation and without citizenship. It should be noted that although this question in wording is extremely important, the motivation for both sides is fairly political. Not only is the allocation of seats of the House of Representatives up in the air, but so too are the correlated number of electors in presidential elections, as well as millions of dollars of federal funds that gets distributed to states based on official population numbers.

After the rushed confirmation of Justice Amy Coney Barrett, following the death of Justice Ruth Bader Ginsburg, Justice Barrett was in place in time to sit for oral arguments in this case. Justice Barrett and others during oral arguments asked a string of questions indicating that at least some of the justices were considering pushing the ruling back to later under the theory that it might be too early to tell what the specific harm in this case is, or how best to respond to this harm. Until the final opinion is released, we will not know what action the Court is taking, or even who is being counted in the census.

Daniel Tagliarina is Pre-Law Advisor and Associate Professor of Political Science at Utica College

Dylan Bennett, Aaron Barsham, Alma Jasencic, Derek Corsner, Eileen Nguyen, Gavin Griffin, Isabella Gilbert, and Lauren Snitker are Political Science students at Utica College