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Federal judges block Trump exclusion of undocumented immigrants from Census

A panel of three federal judges ruled Thursday that President Donald Trump’s memo excluding undocumented immigrants from the 2020 census count is unlawful, finding the U.S. Constitution mandates the enumeration of all people in the nation, not solely citizens. 

“The policy which the presidential memorandum attempts to enact has already been rejected by the Constitution, the applicable statutes and 230 years of history,” the panel wrote in a 93-page summary judgment

The ruling represents a monumental victory for cities, counties, states and civil rights organizations who argued the refusal to count undocumented immigrants meant the apportionment process — which determines how many congressional seats are awarded to each state based on population — would have been predicated on faulty data. 

“A complete, accurate census count is critical for ensuring Californians are heard in Congress — and that we get the resources we need to protect the health and well-being of our communities,” said California Attorney General Xavier Becerra.

U.S. District Judges Lucy Koh and Edward Chen were joined by Ninth Circuit Judge Richard Clifton to preside over the case, as federal law requires a three-judge panel to convene over legal disputes that deal directly with the apportionment process. 

The plaintiffs sued the Trump administration in late September, arguing the constitutional language around the census count is clear the count should not apply strictly to citizens, but to all people living in the country at the time the count is performed.

“There is not a single instance of the framers or anyone since referring to inhabitants as only citizens of the state,” said attorney Richard Bress, arguing on behalf of the plaintiffs during an October hearing.

The Trump administration did not argue the merits of the plaintiffs’ case during the hearing, instead focusing on process, saying it was inappropriate for the coalition of plaintiffs to bring the suit before the apportionment process is complete.  

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“The course the Supreme Court has charted indicates we should wait until after the apportionment process is complete,” said attorney Sopan Joshi, arguing on behalf of the Trump administration. 

The census is crucial not only to provide an accurate idea of overall population levels and demographic breakdowns, but because the apportionment process is so crucial for the fundamental balance of power in Congress. 

Trump administration critics say the federal government wants to discount undocumented immigrants because doing so will reduce the congressional power of so-called blue states like California and New York. 

“It’s past time for the president to recognize that you can’t sidestep the Constitution,” Becerra said Thursday. “Whether it’s at the polls or through the census, we all have to do our part to make our voices heard.”

While Becerra hailed the ruling as a significant victory, it may be short-lived. 

The Trump administration has already indicated it would appeal if the decision was unfavorable. The U.S. Supreme Court will likely serve as the final arbiter. 

It has already taken up another census-related case in federal court in California. That case, which Koh is also overseeing, has to do with the census timeline. The Commerce Department attempted to compress the window in which enumerators collect census data, trying to end Sept. 30. Koh barred the department from doing so and made the new deadline Oct. 31. 

But the Supreme Court overruled Koh, allowing the Census Bureau to cease its data collection two weeks before the Oct. 31 deadline. 

The state of California is not the only jurisdiction trying to thwart Trump’s census plans as it relates to counting illegal immigrants. 

A coalition of nearly 30 states and local governments including New York, Colorado, Chicago and Phoenix filed a similar legal challenge last week. The coalition wants a federal judge to block the change because it violates the Enumeration Clause of the Constitution, the Fifth Amendment’s due process clause, the 10th Amendment’s protections of states’ rights, the 14th Amendment and the Administrative Procedure Act.

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The city of Atlanta filed its own legal challenge of the memorandum shortly after Trump issued it. San Jose, California, King County in Washington state and Arlington County, Virginia, have also piled on.

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Miranda Faulkner/Cronkite News

This is not the first time the Trump administration’s census plans have been in court – this photo shows protesters in 2019 outside the Supreme Court, which struck down an administration plan to add a citizenship question to the census.