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Trump Admin Appeals to Supreme Court in Census Case Days After Ginsburg’s Death

WASHINGTON, DC - JULY 31: U.S. President Donald Trump speaks to members of the press prior to a Marine One departure from the South Lawn of the White House July 31, 2020 in Washington, DC. President Trump is travelling to Florida to attend campaign events and a COVID-19 response and storm preparedness roundtable. (Photo by Alex Wong/Getty Images)

Attorneys from the Department of Justice on Tuesday asked the U.S. Supreme Court to review a case dealing with the illegal immigrants and the 2020 Census for the second time, imploring the justices to take up the Trump administration’s appeal of a three-judge district court ruling on an expedited basis. The appellate brief represents the administration’s first substantive filing with the court since Justice Ruth Bader Ginsburg’s death on Friday.

The crux of the controversy centers on whether the administration is constitutionally authorized to exclude undocumented immigrants from the census population count data used to allocate federal funds and congressional representation. A rare three-judge panel, two of whom were appointed by George W. Bush, unanimously ruled a week and a half ago that President Donald Trump’s directive was “unlawful,” was not  “within the boundaries” of the “authority that Congress has granted” to the president, and was likely to “chill” participation in the census.

In a July Presidential Memo, Trump declared that it was “the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status” and directed Commerce Secretary Wilbur Ross to “take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out th[is] policy.”

complaint, filed two days later by government watchdog group Common Cause, alleged that Trump’s directive violated both federal statutory law and the U.S. Constitution. The group argued that the Fourteenth Amendment unequivocally required every resident be counted in the U.S. Census and included in the basis for reapportioning congressional districts. The lawsuit also alleged that the memo’s directive violated the Equal Protection clauses of the Fifth and Fourteenth Amendments, as it diluted the power of certain citizens’ votes by taking adverse action against those residents on the basis of their race, ethnicity, and national origin.

The Trump administration signaled last week that it would directly appeal the decision to the Supreme Court, which it was entitled to do because this was a three-judge district court decision.

Acting U.S. Solicitor General Jeffrey Wall argued on Tuesday that the panel’s decision was incorrect, claiming that the president and executive agencies are statutorily vested with the discretion to consider more than just the information obtained through conducting the census when determining apportionment. Such information would include “administrative records” and other data.

“That is what the Memorandum instructs the Secretary to do here,” Wall wrote. “In holding that this use of administrative records would somehow cause the apportionment no longer to be ‘based on the results of the census alone,’ the district court fundamentally misunderstood the statutory framework governing the decennial census, subjected the government to an unworkable and illogical standard that has never before been imposed in the history of the census, and contravened this Court’s precedent.”

The solicitor general also argued that there was no precedent to support the notion that the U.S. Constitution requires immigrants in the country illegally to be counted toward the apportionment base for representation in Congress. Immigration law experts have previously called this position “insultingly unconstitutional.”

“Here, there is ample historical and structural evidence supporting the President’s policy determination that the standard does not apply to all aliens living within a jurisdiction without the sovereign’s permission to settle there,” Wall wrote. “Contrary to the district court’s conclusion, legislative history from 1929 does not establish the remarkable proposition that Congress broke new ground by requiring the President to include within the apportionment base for congressional representation all aliens living in this country in ongoing violation of federal law.

Policy counsel at the American Immigration Council Aaron Reichlin-Melnick said Wall should be “ostracized” for filing the appeal.

The administration also requested the court make a decision on an expedited basis, asking for instructions from the justices by the middle of October. Given Ginsburg’s passing, there are currently eight justices on the Supreme Court. Both the president and Senate Republicans are moving quickly to nominate and confirm a justice to fill the vacancy—perhaps before the election.

The Supreme Court is scheduled to hear a high-profile case on Obamacare’s fate just one week after Election Day.

Read the full brief below:

SCOTUS Brief Trump v. New York Jurisdictional Statement A by Law&Crime on Scribd

[image via  Alex Wong/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.