The Supreme Court agreed Friday to consider whether the Trump administration can leave undocumented immigrants out of the count of the total population in the census.
In a brief order, the court set the case for argument on Nov. 30. If Judge Amy Coney Barrett’s confirmed by then, she could participate in the case.
A census is required every 10 years by the Constitution, and the results determine how many members of Congress each state gets in the U.S. House of Representatives. The data is also used to calculate a local government’s share of $1.5 trillion in funds under many federal programs.
In July, President Donald Trump said people who are undocumented should not be included in the final count. In response to a lawsuit filed by a group of states, lower courts said the exclusion would violate federal law and result in a reapportionment of congressional seats no longer based on the actual census results.
Under the president’s plan, the Census Bureau would report two sets of figures to the president — one including everyone counted and another leaving out undocumented immigrants. He would then report the smaller number to Congress for use in reapportionment. The plan would reduce the number of seats in the House for states with large immigrant populations and would cut their share of federal funds.
During debates at the Constitutional Convention, and again during debates over the 14th Amendment, proposals were offered to count only citizens in the census, but each time they were rejected. Congress later considered changing the law, but in 1929 the Senate legal counsel concluded that a statute to exclude noncitizens from the count would be unconstitutional.
In announcing the rules for the count this year, the Census Bureau said, “The resident population counts include all people (citizens and noncitizens) who are living in the United States at the time of the census.”
The American Civil Liberties Union, representing states opposed to the plan and other challengers, said both federal law and the Constitution require including all “persons in each state” in the census count.
That term “cannot plausibly be read to exclude undocumented immigrants who reside in this country,” the ACLU’s Dale Ho said.
Earlier this week, the Supreme Court allowed the Trump administration to stop the census count, blocking lower court orders that directed the count to continue through the end of the month. The government said it needed to stop fieldwork and start work on processing the data in order to meet a federal deadline.