Trump Might Not Get a Chance to Subtract Illegal Immigrants from the Census

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I’ve written a couple of times about the Trump administration’s intention to remove illegal immigrants from the census before transmitting the data to Congress for purposes of apportionment. If that happens, states with lots of illegal immigrants could lose seats in the House.

I’m dubious that this is legal, and in oral arguments before the Supreme Court, both Amy Coney Barrett and Brett Kavanaugh seemed to share my skepticism. Further, a lawyer for the administration told the Court that the administration might not be able to identify illegal immigrants all that comprehensively, and thus might have to settle for removing certain subsets of them, such as those who have been ordered removed from the country or are in detention with Immigration and Customs Enforcement. That move may be easier to justify legally, though such people might not be numerous enough to shift any House seats.

Another issue lurking in the background is that COVID-19 has delayed the data-processing work the Census Bureau needs to do to complete its report — and it might not be done before Trump leaves office. Politico reports on some documents with new details:

Apportionment data from the 2020 census, which determines how many House seats each state will get for the next decade, may not be delivered until after President-elect Joe Biden is inaugurated, according to documents released by the House Oversight Committee.

The Democratic majority on the committee was vague on how it received the internal documents, saying only that it obtained them from “another source” after the Trump administration declined to turn over various documents when the committee asked for them. One of the documents released by the committee, dated Nov. 27, says the “expected delivery” for that final apportionment count is Jan. 23, just days after Biden is inaugurated and President Donald Trump leaves office. Public release of the data is also scheduled for that day. . . .

In a statement, the Census Bureau did not deny the authenticity of the documents posted by the committee but said the timeline is not certain yet.

That November 27 document also says the “Unauthorized Population by State” data, which Trump wants to subtract from the overall counts, aren’t expected until February 3. However, at oral argument before the Supreme Court, the administration’s lawyer said “at least some” of that data might be available earlier.