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Justices Doubt Trump Plan To Exclude Some Immigrants From Census


The Trump administration's effort to exclude undocumented immigrants from the 2010 census is now in front of the U.S. Supreme Court. Oral arguments began yesterday, and NPR's legal affairs correspondent Nina Totenberg reports that the justices expressed some doubts.

NINA TOTENBERG, BYLINE: In July, Trump ordered the Census Bureau to subtract the estimated 10.5 million undocumented immigrants from the 2020 census that's used to calibrate how many congressional seats and Electoral College votes each state gets for the next decade. But in the Supreme Court yesterday, the Trump administration's top appellate lawyer, Jeffrey Wall, had a lot of trouble defending that position. On constitutional grounds, he got pushback from Trump's most recent appointee, Amy Coney Barrett.


AMY CONEY BARRETT: A lot of the historical evidence and a long-standing practice really cuts against your position. You can see that illegal aliens have never been excluded as a category from the census.

TOTENBERG: On more pragmatic grounds, Wall got pushback from other conservatives when he admitted that the government does not know how many, quote, "illegal aliens" the administration has identified for exclusion from the count.

JEFFREY WALL: As of this very morning, career experts at the Census Bureau confirmed with me that they still don't know even roughly how many illegal aliens it'll be able to identify, let alone how their number and geographic concentration might affect apportionment.

TOTENBERG: The situation, he said, is very fluid. A clearly annoyed Justice Samuel Alito responded this way.


SAMUEL ALITO: There are only 31 days left in the year. To exclude the 10.5 million seems to me a monumental task.

TOTENBERG: Lawyer Wall said, at this point, that the administration might only be seeking to exclude small subsets of unauthorized immigrants, like those in ICE custody. He conceded, however, such subsets would only be in the tens of thousands of people out of the estimated 10.5 million Trump would like to exclude, all of which prompted Chief Justice John Roberts and other justices to look for an off-ramp on the theory that Trump will be out of office by the time the Census Bureau is able to provide reliable figures on the undocumented population in each state. And President-elect Biden has condemned Trump's July memo, saying that in America, everyone counts.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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