The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted.  One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.”

At issue is the census provision of the Constitution providing that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. Amend. XIV, § 2. That obligation requires the federal government to conduct an “actual Enumeration” every ten years in “such Manner as” directed by Congress. Art. I, § 2, Cl. 3.

Congress enacted legislation that directed the Secretary of Commerce to conduct “a decennial census of population * * * in such form and content as he may determine.” 13 U.S.C. 141(a) (Census Act). Accordingly, by December 31, 2020, the Secretary must submit to the President “[t]he tabulation of total population by States … as required for the apportionment of Representatives in Congress among the several States.” 13 U.S.C. 141(b) (the Secretary’s report or the report). Once he receives that information,  the President must “transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled … by the method known as the method of equal proportions.” That occurs within one week of the first day of the next Congress’s first regular session. 2 U.S.C. 2a(a).

The Trump Administration announced that it would not count those in the country illegally in the census. On July 21, 2020, the President issued a Memorandum to the Secretary of Commerce on the apportionment population base under the 2020 census. 85 Fed. Reg. 44,679 (July 23, 2020). The Memorandum stated that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended, to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” Id. at 44,680.

As I have stated earlier, that narrow interpretation is at odds with long-standing case law.  That point was made by Barrett who told the Solicitor General that “[a] lot of the historical evidence and a longstanding practice really cuts against your position.” This is the same Barrett who Democrats denounced as a robotic ideological shill who was being put on the Court to vote for the Administration on both the ACA case and census case.  Indeed, the absurd conspiracy theory on the ACA case was voiced by various senators in justifying their votes against Barrett.

The justices balked at regulating intrabranch communications between the President and the Department of Commerce, particularly after counsel agreed that the same information could be conveyed in separate envelopes and not violate the underlying injunction in the case:

Roberts: … It seems to me that you’re asking really for a gag order on the Secretary of Commerce concerning his communications to the president. Let’s suppose that the secretary conducts the census and prepares the tabulation exactly as you would have it and puts that in an envelope to send to the president. But also in a separate envelope, puts information on the number of illegal aliens. And he sends both of those envelopes to the president. Is that fine with you?

General Underwood: (48:42) Yes. That does not violate the injunction. There is no gag order to be placed on the Secretary of Commerce. He can be asked for and respond with all sorts of information, but the 141, the particular statements and transmittals that are operative, they aren’t just the transmission of information. They operate as steps in the apportionment. [crosstalk 00:22:09].

That statement was raised repeatedly by justices who questioned the position of the court in regulating how such information is conveyed between the White House and federal agencies.

During the argument, one phrase was repeated by various justices: “illegal alien.”  It is a term that we have previously discussed because of efforts to ban its use despite being a common reference to the status of individuals in statutes, policies, and cases, including the Trump policy at issue in this case.  Justices like Roberts, Thomas, Barrett and Sotomayor all used the term which was used by the Trump Administration. Justice Sotomayor noted for example “if he’s going to tabulate and exclude illegal aliens, we have to decide a matter of law, whether the word, persons, as used in the Statute and Constitution who live here, permits the exclusion of illegal aliens, correct? That’s the legal question.”

As we previously discussed, schools like the University of Maryland has told faculty and student not to use the term as fostering the “dehumanization of an entire group of individuals.”  California has banned the term from government documents as offensive.  Colorado legislators have also denounced its use. The Library of Congress has stopped using the term.  Writers like New York Times’ Lawrence Downes declared “illegal” is “a code word for racial and ethnic hatred.”

The Supreme Court was heralded in a prior decision for avoiding the term except when quoting directly from an underlying statute or policy.

The justices used the term generally and not just to quote from the Administration’s policy in yesterday’s argument. They also used “undocumented” as a term.  While the policy refers to those “not in a lawful immigration status,” the briefs use the common term “illegal alien.”

I have previously stated that the use of the term is not inherently racist but rather a common statutory and legal reference to the legal status of individuals. That does not mean that we should not recognize how it is received by many in our country. I tend to use “undocumented” for that reason. However, this is a choice upon which people of good-faith can disagree. I do not assume that its use is driven by racism in the Court or own our campuses.