Thread by @mikemacagnone

Supreme Court arguments over #2020census results starting now. Administration starts out arguing to toss the case rather than rule now.

Chief Justice Roberts jumps in with first question about the deadline. SG says they're not currently on pace to meet the end of year deadline.

SG Wall says the Commerce Department may still be able to get information to the president in January (possibly before Biden takes over on Jan. 20)

Roberts said this could be "like having to unscramble the eggs" if they have to address the case again next year.

Justice Thomas asks a question! He's looking for Wall to answer how the court would address the case without actually enjoining the president.

Justice Breyer going to statutory language now in his questions. He's trying to parse the administration's argument for excluding undocumented immigrants from apportionment after the #2020census

Breyer calls the challengers' arguments "very strong" and points out that undocumented immigrants "are persons aren't they?"

Justice Alito "frustrated" with unknowns in the case, particularly number of potential undocumented immigrants.

Wall says "it is very unlikely that the bureau will be able to identify all or substantially all illegal aliens present in the country so anything like the 10 or 11 or 12, million numbers that are flying around."

Justice Sotomayor jumping into merits here. So far the conservatives have focused more on practical/procedural questions.

More Sotomayor: "I'm not sure how you can identify any class of immigrants that isn't living here in its traditional sense" following #2020census

Kagan now jumping into the practical questions about what subsets of undocumented immigrants could be excluded following the #2020census

Wall says Census Bureau is working to exclude DACA recipients from apportionment following #2020census and is working to match administrative immigration records to census responses.

Justice Gorsuch gets into practicalities again. Asks a very Gorsuch question. "Are we arguing about the meaning of a statute that doesn't exist?"

Justice Kavanaugh focusing on standing here. Says Trump's memorandum puts no obligation on the plaintiffs to act, and thus may have no standing.

Justice Barrett jumps into the historical evidence that runs against the administration. Points out only a few historical examples buttress the administration.

Wall pushes back, argues that people like embassy personnel don't count in the #2020Census

Wall in response to Barrett: "I'm not disputing at all that illegal aliens form ties to the community in the sense you're talking about, but they're not the sort of ties that are sufficient to qualify you within the apportionment base."

Wall falls back on the Supreme Court's 1992 Franklin v. Mass. case allowing inclusion of overseas military personnel in apportionment. Administration has relied on that through the litigation to say they have discretion to exclude undocumented immigrants.

New York Solicitor General Barbara Underwood argues "the memorandum treats counting people as a reward, to be withheld from states that house undocumented immigrants,"

So far Justice Roberts has focused his questions on practical matters, like the specifics of transmitting the report from the Commerce Department to the president.

Justice Breyer hits on the potential future impacts of the exclusion of undocumented immigrants from apportionment. Now turns to Franklin v. Mass., the government's main case.

Underwood says the executive does not have unlimited discretion per Franklin. Answer got cut off by the beginning of Justice Alito's question.

Justice Alito getting into the logistics of the court ruling on the communications between the Commerce Department and White House.

Justice Sotomayor says the case is "similar to Franklin" but says that Trump cannot use anything outside of the Commerce Department report for apportionment.

Justice Kagan asks whether it's "credible" that census currently says it doesn't know how many people it could exclude from apportionment.

Underwood: "it might make sense for this court to wait a couple of weeks and find out whether there's more information that would shed some light on this question "

Gorsuch "It's speculative as to how much they're going to be able to do. And once we've once we're in that world, then it's speculative whether there's going to be any effect on the apportionment and, and in that world, we have a standing problem"

Underwood now says there's a "substantial risk" of harm from the apportionment change, even if we don't know how much there would be.

Kavanaugh acknowledges the strength of Underwood's argument "but I'm not sure that's going to be the dispute," and points to possibility of future policy changes by the president.

Barrett again getting to possibility of a punt: "Doesn't that cut in favor of waiting, that maybe there's no injury here because we're not really sure what the contours of the decision would be?"

.@dale_e_ho starts up his portion of the arguments now. Cites the small margins that have impacted apportionment in the past. Even a few tens of thousands of people could shift seats.

@dale_e_ho Ho: "So there's a substantial risk of injury now and it will be better to resolve this issue now rather than in six months during the redistricting process which could be disruptive. "

@dale_e_ho Roberts asks about what the harm would be to wait until later to rule on the process. Conservatives in the court seem focused on standing/practical issues here.

@dale_e_ho Alito again hitting on the question of residency, asks Ho to identify people who could be excluded.

@dale_e_ho Ho: "the plain language of the operative constitutional and statutory provisions don't turn on lawful immigration for that. They turn on the facticity of a person's residential circumstance. "

@dale_e_ho Justice Gorsuch passes up his chance to ask any questions. Justice Kavanaugh in here now.

@dale_e_ho Kavanaugh "It’s not going to be particularly feasible to exclude noncitizens" as a broad category.

@dale_e_ho Ho: "No court, no Congress, and no executive branch before now have ever thought that undocumented immigrants, could be excluded from the whole number of persons in each state."

@dale_e_ho Wall is arguing for court not to rule right now. Also argues that justices should reverse the lower courts if the president has any authority to exclude any subset of undocumented immigrants