News Analysis

Supreme Court unsure if immigrants can be excluded from Census

In Trump v. New York, the Justices analyzed whether or not the Trump administration could exclude illegal immigrants from the country's census data.

Nicole Russell Texas, US
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The Supreme Court heard a controversial case today on immigration, Trump, and the census. In Trump v. New York, the Justices analyzed whether or not the Trump administration could exclude illegal immigrants from the country's census data, which is taken every ten years, and is used to divide seats in the US House.

Several Justices weighed in on whether or not excluding immigrants from the census was unconstitutional and, if it was not, whether they had the authority to block a policy that hasn't yet been implemented.

In one of her first controversial cases, Justice Amy Coney Barrett seemed to favour New York's position that failing to count illegal immigrants in the census data was unconstitutional, given the language of the 14th Amendment and "a lot of the historical evidence and longstanding practice" wherein that has been the case.

The 14th Amendment states the following:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

Barrett asked the attorneys presenting Trump's case why illegal immigrants who have lived in America for twenty years would be excluded from the language of the 14th Amendment and said that "Illegal immigrants have never been excluded as a category from the census." Barrett sounded skeptical that Trump's policy is constitutional.

After listening to the arguments, Slate reporter Mark Joseph Stern came to the conclusion that at least five justices "seem to recognize that excluding all undocumented immigrants from census apportionment is unconstitutional."

Only Justices Thomas and Alito, seemed to agree with Trump's position that he could exclude illegal immigrants from census data without violating the Constitution.

In this symposium, arguing for that position, Hans von Spakovsky, senior legal fellow at the Institute for Constitutional Government of the Heritage Foundation, said that the motivation to count them is purely political and should have no real basis in law.

"Noncitizens who are here illegally – like tourists or other temporary visitors – have no element of political allegiance to any state or the federal government. They cannot be drafted for jury duty or for military service (if we still had a draft), because they owe their political allegiance to the native country of which they are a citizen. Moreover, they have no 'enduring tie' to any state since they are illegally present in the country. They can be picked up, detained at any time by federal authorities, and removed from the United States."

While a ruling remains to be seen, it does not sound like the Supreme Court will find in favor of Trump's position, if they even decide they can rule on the merits of the case at all.

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