Thread by @KlasfeldReports

SCOTUS will hear the outgoing Trump admin's appeal of a unanimous three-judge ruling rejecting its memo attempting to exclude undocumented immigrants from census apportionment.

@NewYorkStateAG pointed to an ugly pedigree of redefining "persons."

Covering live, @LawCrimeNews

The Apportionment Clause:

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State..." constitution.congress.gov/browse/essay/a…

Oyez, oyez, oyez.

Here we go: c-span.org/video/?477428-…

Acting U.S. Solicitor General Jeffrey Wall:

"This case should be over," arguing that since the census count is over, there is no chilling effect any more by Trump's memo.

Chief Justice Roberts asks about what deadline would be needed for a ruling.

The Trump admin argues that the memo can only be challenged post-apportionment.

Chief Justice Roberts: "Isn't that going to be like unscrambling the eggs?"

Justice Breyer:

"To clear away some weeds from my mind, would you tell me where I missed this or I'm right."

The SG keeps attacking the procedure of the lawsuit, not the merits of the argument.

Breyer notes plaintiffs are suing the secretary telling him not to follow an order to illegally exclude undocumented immigrants from census apportionment.

"If it's illegal, you can't do it," he notes, summarizing the argument.

Wall keeps attacking this as a "pre-apportionment challenge."

Justice Sotomayor is up:

"Right now, [Trump's] policy is if I can identify them, no matter what their reason is," he's going to exclude undocumented immigrants from census apportionment.

Sotomayor skeptical of Wall's downplaying the effect of the memo:

"The number is going to be substantially large."

"I don't see how you can represent to us that you don't think it's going to be a substantial number."

Sotomayor:

"I am not sure how you can identify any class of immigrants that isn't living here in its traditional sense."

Acting SG finally moves onto defending the merits, i.e. that "persons" in the apportionment clause means something other than "persons."

"The court would have to conclude in order to say that the president does not have the discretion to exclude any" undocumented immigrants.

Justice Kagan:

There are 700,000 DACA recipients. Will the [Census] Bureau be able to report on those?

SG balks on a flurry of questions about just how many immigrants the Trump admin wants to exclude from apportionment.

Justice Gorsuch also presses Acting SG Wall for details.

Again, Wall balks.

"We just don't know more at this point."

Kavanaugh to SG Wall:

You "forcefully" argue that there would be too much uncertainty to have this injunction.

But he adds that a court can order declaratory relief later.

"You are not saying as a judicial review, not now, not ever."

Justice Amy Coney Barrett tells Acting SG that the merits, on the meaning of "persons," "really cuts against your position":

You can see that undocumented immigrants have never been excluded from apportionment from the census, she tells him.

New York Solicitor General Barbara Underwood is now up:

"The government can do many things to induce undocumented people to leave, but they cannot declare them gone."

Underwood: "An unlawful policy cannot be saved" by the argument "that a lawful policy could be written."

Underwood: "Their undocumented status cannot erase their presence."

Chief Justice Roberts asks whether NYAG is asking for a gag order or whether the Secretary of Commerce can provide info about undocumented persons.

Underwood: "There is no gag order to be placed on the Sec. of Commerce. He can be asked and respond with all sorts of information."

Picking up that line, Justice Thomas talks about the use of that information.

Justice Thomas: If sent separately, it can't be used.

Underwood: For apportionment, yes. It can be used for other things, but not for apportionment.

Sotomayor asks the NYSG whether this is the legal question:

"If the Secretary gives him illegal numbers to exclude, he cannot use an outside report" to exclude undocumented immigrants from the sentence.

NYSG Underwood agrees.

Sotomayor:

Some of those numbers legitimately cannot be excluded. That's your argument, correct?

NYSG Underwood:

Yes.

Justice Kagan notes that the government has documents on millions of people.

Acting SG Wall claims that the Census Bureau does not know how many people they will exclude because of the matching process.

Kagan asks whether that is credible.

NYSG:

Subtracting some of that 4 million number would be enough to exclude representation from states.

"It's speculation that they won't be able to do it at this point," Underwood says, adding that it might make sense to wait a couple of weeks for clarity.

If it is speculation how many the Trump admin will exclude, Gorsuch asks, why that wouldn't be a standing or ripeness problem now?

Underwood says that they know they will exclude people in ICE detention now, and they're "feverishly" working to exclude others.

Gorsuch: You concede that it's speculative how many will be excluded.

"In that world, we have a standing problem, don't we?" Gorsuch adds.

Underwood replies: "We have a substantial risk of injury... sufficient for Article III injury."

Echoing Justice Barrett, Kavanaugh tells NYSG that she has strong arguments on the merits, but he questions whether the lawsuit is ripe now.

Underwood:

"The Constitution and laws provide that House seats should be allocated by total population."

"The policy would for the first time in this nation's history reject that choice."

Up now: The ACLU's @Dale_E_Ho

"It would be better to resolve this issue now rather than in 6 months," when it could be "disruptive" to redistricting.

Pressed by both Chief Justice Roberts and Justice Thomas, ACLU's Dale Ho emphasizes the need for action now.

"It's the categorical policy that's at issue, and it's unlawful."

Justice Breyer asks Ho about the lawfulness of excluding people in ICE detention.

Ho replies that it's a heterogeneous population and excluding some of that set could be illegal.

Sotomayor presses Ho on the "waiting problem" in delaying action in the census case.

"The apportionment begins once the report is issued, and so we would have to unscramble the egg."

Ho notes that the government has records on millions of people, more than adequate to prove a "substantial risk" of injury to satisfy standing if only a portion of undocumented immigrants are excluded.

Analysis:

SCOTUS appears skeptical in the Trump admin's redefinition of "persons" to exclude undocumented immigrants from census apportionment, even Barrett and Kavanaugh.

The conservative wing questions whether the injunction can stand procedurally.

This is why the questions about "unscrambling the egg" by Chief Justice Roberts, echoed later by Justice Sotomayor, are important.

If there's nothing blocking the Secretary of the Census from handing Trump the numbers now, it can cause problems later.

The case is submitted without a ruling.

Story ahead, @LawCrimeNews.