For the second time in two months, a panel of federal judges on Thursday blocked President Donald Trump’s effort to exclude people in the U.S. illegally from being counted during the process of divvying up congressional seats by state.
The decision from a panel of three district judges in California went further than last month’s ruling by a panel of three federal judges in New York by saying that Trump’s order in July not only was unlawful but also violated the Constitution. The New York judges ignored the question of the order’s constitutionality and just said it was unlawful.
“The Constitution’s text, drafting history, 230 years of historical practice, and Supreme Court case law all support the conclusion that apportionment must be based on all persons residing in each state, including undocumented immigrants,” the judges in California wrote.
The Trump administration has appealed the New York decision to the Supreme Court, and the nation’s high court agreed to hear the case next month.
Other challenges to Trump’s order are pending in Maryland, Massachusetts and the District of Columbia.
The Department of Justice, which is representing the Trump administration, didn’t immediately respond to an email inquiry Thursday.
The case was heard before a panel of three district judges since it deals with how many congressional seats each state gets based on population figures from the once-a-decade census — a process known as apportionment. Any appeal can bypass an appellate court and go straight to the Supreme Court.
During arguments earlier this month, Trump administration attorneys told the judges that any challenge to the order was premature and should wait until the apportionment numbers are turned in at year’s end.
The Census Bureau has yet to make public its method for determining the citizenship status of every U.S. resident, as requested in another order issued by Trump last year after the Supreme Court blocked his administration’s effort to add a citizenship question to the 2020 census. During a news conference on Wednesday, bureau officials refused to answer whether carrying out the order on apportionment was feasible at this point.
In the order, Trump said that allowing people in the country illegally to be counted for apportionment undermines the principles of representative democracy.
The federal judges in California sided with a coalition of individuals and governments that had sued the Trump administration, arguing the order discriminates against people based on race, ethnicity, and national origin. The coalition included the state of California; the cities of Los Angeles, Oakland and San Jose in California; and the counties that are home to Houston and Seattle.
The ruling reinforces that regardless of legal status, “the millions of undocumented immigrants who live, work, attend school, and raise their children in our communities are inhabitants of this country and must under the Constitution be counted,” said Rick Bress, an attorney for the plaintiffs.
The judges on Thursday prohibited the Commerce Department, which oversees the Census Bureau, from sending to the president any information about the number of residents living illegally in each state that could be used to exclude them from the apportionment count.
Excluding those residents could cost states such as California and Texas congressional seats and federal funding, the judges said.
Besides deciding how many congressional seats and Electoral College votes each state gets, the census determines the distribution of $1.5 trillion in federal spending annually.
“Here, it is clear who would be harmed by the exclusion of undocumented immigrants,” the judges wrote.
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