How will the court vote on Illegal immigrant Census case?

[lfromnj]

Im obviously expecting the 3 libs to vote against Trump

Then assuming ACB is confirmed here are my guesses from most to least likely to vote against Trump

3 Libs- Gorsuch(pretty clear in constitution)- Roberts- Thomas-Kavanaugh- ACB-Alito.

[brucejoel99]

The Constitution is very clear about counting every "person," not just every "citizen," sooooo...

[True Federalist (진정한 연방 주의자)]

The only thing I'll say is that if any of the proposed alterations to the count aren't based on identifying a specific unauthorized immigrant to not be included, I don't see those being approved. There's just too much case law involving not allowing estimates to alter the census count.  Whether they decide to allow the exclusion of such people from the count is less certain.

[RussFeingoldWasRobbed]

Im obviously expecting the 3 libs to vote against Trump

Then assuming ACB is confirmed here are my guesses from most to least likely to vote against Trump

3 Libs- Gorsuch(pretty clear in constitution)- Roberts- Thomas-Kavanaugh- ACB-Alito.

Thomas before Kavanaugh?

[SteveRogers]

Even if SCOTUS were to allow the Trump administration to exclude illegal immigrants from the count, couldn’t a democratic congress just use the whole number for apportionment instead of the Trumpified numbers?

[Senator Incitatus]

The Constitution is very clear about counting every "person," not just every "citizen," sooooo...

It's not entirely clear what the Constitution means by "person."

[brucejoel99]

The Constitution is very clear about counting every "person," not just every "citizen," sooooo...

It's not entirely clear what the Constitution means by "person."

The 14th Amendment's literal reference to "citizens" directly after the Apportionment Clause would imply that "persons" includes non-citizens.

[NewYorkExpress]

5-4 against Trump (Roberts and Gorsuch both vote with the progressive bloc).

[jimrtex]

The Constitution is very clear about counting every "person," not just every "citizen," sooooo...

The use of the word "in" is ambiguous.

Is someone who is traveling from London to Mexico City and miss their connecting flight in Atlanta on April 1, they are literally in Georgia, but are they counted?

What about if they are on a tourist visa for a month? Six months? What if they overstay the visa and get a job?

Is an illegal alien who is incarcerated with a hold so that he can be deported when the sentence is completed be counted? What about someone who is detained in an ICE facility?

[Skill and Chance]

I'm thinking at least 6/3 to count everyone, at most 8/1.  Gorsuch is just about a sure thing to oppose the EO, Roberts and Kav don't like to upset the apple cart, and Alito is almost a sure thing to support the changes.  ACB and Thomas are IDK.

[NewYorkExpress]

I said 5-4 against Trump, but depending on how Gorsuch/Roberts come down, this could be 5-4 in favor of Trump.

I can see one of Gorsuch/Roberts voting with the progressive wing, but not both.

[Kevinstat]

The Constitution is very clear about counting every "person," not just every "citizen," sooooo...

The use of the word "in" is ambiguous.

Is someone who is traveling from London to Mexico City and miss their connecting flight in Atlanta on April 1, they are literally in Georgia, but are they counted?

What about if they are on a tourist visa for a month? Six months? What if they overstay the visa and get a job?

Is an illegal alien who is incarcerated with a hold so that he can be deported when the sentence is completed be counted? What about someone who is detained in an ICE facility?

Are you just counting people who were so incarcerated or detained on April 1, or also those who were arrested/captured by ICE after.  You may not think that's a relevant distinction, but some (like Tender Branson and I) would.

[brucejoel99]

In any event:

https://twitter.com/fawfulfan/status/1329487674541936640

[muon2]

The Constitution is very clear about counting every "person," not just every "citizen," sooooo...

The use of the word "in" is ambiguous.

Is someone who is traveling from London to Mexico City and miss their connecting flight in Atlanta on April 1, they are literally in Georgia, but are they counted?

What about if they are on a tourist visa for a month? Six months? What if they overstay the visa and get a job?

Is an illegal alien who is incarcerated with a hold so that he can be deported when the sentence is completed be counted? What about someone who is detained in an ICE facility?

Are you just counting people who were so incarcerated or detained on April 1, or also those who were arrested/captured by ICE after.  You may not think that's a relevant distinction, but some (like Tender Branson and I) would.

I listened to a webinar a month ago by the Chief of the Census Redistricting & Voting Rights Data Office. He said that the population that they were planning to segregate by the exec order were those who were counted on April 1, but were in federal detention as aliens without legal entry. Many of those would be at the ICE centers in TX. They planned to provide both set of counts to the executive who would make the determination as to which set to convey to Congress for apportionment.

As noted, if the date is moved to Jan 26, then the matter is in the hands of President Biden. The only question I see is by what authority can they move the date? It's set by statute so if Congress enforces the statute, then the data must be delivered by Dec 31. It would set up an unfortunate situation of incomplete data (presumably lacking some or all of the imputed data).

[muon2]

In any event:

https://twitter.com/fawfulfan/status/1329487674541936640

I presumed when I read the first release related to the delay that the process of completing the imputation of apportionment data could not be completed on time. The question that wasn't asked at the time of this announcement was how this affects the timeline for creating the imputation of the demographic data which is already under pressure due to the late end of the field enumeration. Much of that next step fixes the racial and ethnic minority data, filling in holes from incomplete records.

If the apportionment data is delayed how much does this delay the release of the redistricting data. It's statutorily set at Mar 31. If the data isn't complete by then, I can't imagine the Biden administration wanting to release redistricting data that is incomplete in it's representation of minority populations. So if the apportionment data is delayed by almost a month, how much if any delay will there be for the redistricting data.

[jimrtex]

In the California case which had required the NRFU to continue, the court had ruled that the attempt by the Census Bureau to complete the Census by the statutory deadlines was arbitrary and capricious.

The Census Bureau had made its final plans for the Census in December 2018, subject to adjustments.

After COVID-19 they produced the COVID-19 plan which delayed enumeration deadline until October 31, apportionment numbers until the Spring, and redistricting numbers until the Summer on an assumption that Congress would modify the statutory deadlines.

After Congress failed to act the Census Bureau came up with the Replan, which accelerated completion of NRFU, and reduced some of the post-processing in order to meet the statutory deadlines. The district court violated the Administrative Procedures Act (APA) because it was arbitrary and capricious. The district court enjoined completion of NRFU by September 30 and also completion of other steps by the statutory deadline, and was apparently willing to micro-manage the executive.

The 9th Circuit stayed the part about steps after completion of NRFU, and the SCOTUS stayed everything - apparently agreeing that compliance with statutory deadlines was not arbitrary or capricious. NRFU was ended on October 15, half a month after what the Census Bureau wanted, but half a month before what the plaintiffs wanted.

The California cases at both the district court and 9th Circuit level appear to be dragging on into 2021 - they could well be decided as being moot.

The SCOTUS in the case of whether illegal aliens must be counted could follow the lead of Franklin v Massachusetts which permitted persons who were part of the United States polity but not literally in the United States to be included in the apportionment count on the basis of administrative records rather than an actual enumeration, and even though it did not include all US citizens that it might have.

In the case of illegal aliens who have have been styled as immigrants, even though they have no legal right to establish residency, clearly are not part of the United States polity, and administrative records can identify some if not all such persons.

The SCOTUS could also decide the case is not ripe, and call for a rehearing in a few months.

[jimrtex]

The amicus brief on behalf of Alabama congressmen is interesting because it calls into question the basis of the decision in Wesberry v Sanders. The SCOTUS could have simply followed Reynolds v Sims and declared congressional districting as practiced in the mid-1960's in violation of equal protection. Instead it conjured a principle that since representatives are chosen by the people and apportioned based on the number of people that districts should have as equal population as "practicable", which in turn has enabled more precise gerrymandering in the guise of making population vary by less than +/- 1.

This ignores a clear directive in the Constitution that establishes the class of individuals who choose federal representatives as those individuals who may vote for members of the larger chamber of the state legislature. In modern times, this is citizens over the age of 18 (CVAP).

If one follows Wesberry one would come to the absurd conclusion that slaveholders should have more political power than free men; that those who owned a certain type of property should have more votes.

The SCOTUS should instead have adopted the position of Justice White's concurrence and required equal protection for voters regardless where they lived.

[I’m not Stu]

I'm thinking at least 6/3 to count everyone, at most 8/1.  Gorsuch is just about a sure thing to oppose the EO, Roberts and Kav don't like to upset the apple cart, and Alito is almost a sure thing to support the changes.  ACB and Thomas are IDK.

Thomas will support Trump. He almost always sides with Alito.

[jimrtex]

Oral arguments for Trump v New York

Trump v New York audio (mp3)

Trump v New York transcript (PDF)

[Skill and Chance]

I'm thinking at least 6/3 to count everyone, at most 8/1.  Gorsuch is just about a sure thing to oppose the EO, Roberts and Kav don't like to upset the apple cart, and Alito is almost a sure thing to support the changes.  ACB and Thomas are IDK.

Thomas will support Trump. He almost always sides with Alito.

There is a big distinction between originalism and the modern conservative position in this case that makes me unsure about Thomas. 

[I’m not Stu]

It looks like the case will be dismissed or Trump loses on the merits. Four Republican justices seem inclined to dismiss the case or rule against Trump. Thomas and Alito likely side with Trump. If the case is dismissed, there will be future challenges that Trump will lose in a 7-2 decision.

[(no subject)]

Conservatives: "originalism is real!"

Historians: "The Founders couldn't agree among themselves what the Constitution means and most things we have today were not conceived of in 1789"

Conservatives: "It's OK to be White!"

[Former President tack50]

I can see an argument that illegal immigrants should not be counted because they are not supposed to be in the US?

In theory illegal immigrants are supposed to be arrested on the spot and deported when found out.

I can't see any argument to exclude legal immigrants from counting though.

[I’m not Stu]

I can see an argument that illegal immigrants should not be counted because they are not supposed to be in the US?

In theory illegal immigrants are supposed to be arrested on the spot and deported when found out.

I can't see any argument to exclude legal immigrants from counting though.

The constitutional text itself requires that undocumented immigrants be counted. That's why "citizens" and "persons" both appear in the text. The tradition for over 200 years was to have them counted.

[brucejoel99]

6-3 per curiam dismissal for lack of standing, with Breyer, Sotomayor, & Kagan dissenting (get used to that). The plaintiffs can re-file their case & appropriately litigate the merits once there's a live case/controversy, but given that Census data delays mean that presidential approval of the apportionment isn't able to happen 'til after January 20th, Biden will just end up mooting the case by having the Census Bureau re-do the apportionment with undocumented residents included in the count.