The census has never excluded counting such people to determine the number of House seats each state gets. The Constitution stipulates that U.S. representatives “shall be apportioned among” states and must count the “whole number of persons in each state.”

[ READ: Native Americans Fear Census Undercount ]
During arguments late last month, Chief Justice John Roberts questioned the timing of the case with a quickly approaching deadline of Dec. 31 for Secretary of Commerce Wilbur Ross to submit the enumeration to the president. After that, Trump transmits the count to the next session of Congress for apportionment early next year.


Trump’s legal team couldn’t definitively say how the directive would alter the count, noting during arguments that the administration hadn’t yet determined whether all people living in the country illegally would be excluded or just a smaller subset.


But the court’s three liberals — Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan — dissented, arguing that the uncertainty of how many people would be left out of the 2020 enumeration shouldn’t “warrant our waiting to decide the merits of the plaintiffs’ claim.”


“In enacting the 1929 Act, Congress sought to address that problem by using clear and broad

[ MORE: SCOTUS to Review Trump’s Census Plan ]
language that would cabin discretion and remove opportunities for political gamesmanship. History shows that, all things considered, that approach has served us fairly well,” Breyer wrote.


“Departing from the text is an open invitation to use discretion to increase an electoral advantage,” he continued. “Because I believe plaintiffs’ claims are justiciable, ripe for review, and meritorious, I would affirm the lower court’s holding. I respectfully dissent.”


Lisa Hagen, Reporter


Lisa Hagen is a politics reporter for U.S. News & World Report covering Congress, the 2020 … READ MORE


Tags: Supreme Court, Donald Trump, immigration, U.S. Citizenship and Immigration Services, Census Bureau, Constitution

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