Thread by @mcpli

Time for oral argument in the case challenging the Trump administration’s attempt to exclude undocumented immigrants from the apportionment base. #2020Census

Roberts starts off by noting that SCOTUS expedited the case based on the understanding that a decision was needed by 12/31 to enable the Census Bureau to meet statutory deadlines. Asks if that deadline is still operative. #2020Census

Acting SG Jeffrey Wall says the Census Bureau is not on track to meet 12/31 deadline because of delays but holds out the possibility that some data might be available in January (i.e., before Biden takes office). #2020Census

Wall’s argument overall is that the case is not ripe because we don’t yet know how many undocumented people, if any, the Census Bureau will be able identify and whether that will make a difference in congressional apportionment (i.e., don’t reach the merits). #2020Census

Breyer wants to get into the merits, however. Asks if law prohibits the President from excluding undocumented people from the census, why isn’t requesting the info wrong/illegal? #2020Census

Alito presses Wall on whether it is really realistic that the Bureau will be able to identify with any certainty the 10 million plus undocumented immigrants by end of December.

Wall concedes that is unlikely but can’t say how large number will be. #2020Census

Alito is skeptical. Asks how could any apportionment be valid if Bureau is only able to ascertain the legal status of only a portion of the population and only those people are excluded. #2020Census

On questioning from Sotomayor, Wall concedes that it is unlikely that the number of undocumented immigrants able to be identified by the Bureau would affect apportionment. #2020Census

Wall’s answers very carefully trying to avoid getting to the merits of the case by suggesting the President might not be excluding very many people from the apportionment base. The argument being that the court shouldn’t take up the merits unless the number is large. #2020Census

Barrett gets into the merits asking Wall whether the President’s desire to exclude undocumented immigrants from the apportionment base would go against long accepted practices. #2020Census

Wall tries to argue that presidents always had the discretion to exclude undocumented persons but just didn’t. Barrett sounds skeptical. #2020Census

On to New York SG Barbara Underwood, arguing for the challenging states. #2020Census

Aside: I am really glad not to have had to get up at 4:00 a.m. to go to this argument. #2020Census

Gorsuch asking Underwood question about whether harm to states is speculative at this point given uncertainty about how many people would be excluded. #2020Census

Gorsuch’s question getting at whether states have standing. Underwood pushes back on Gorsuch’s assumption that number could be nominal. #2020Census

Barrett’s questioning suggests that she doesn’t want to punt on standing. #2020Census

In his time, Dale Ho from the ACLU argues that the Trump policy is to exclude all undocumented immigrants and that is enough to give standing. Court should rule on that policy, not some hypothetical smaller exclusion. #2020Census

In his rebuttal, Wall argues simultaneously that the case is not ripe but also that the government should win because the President clearly can exclude at least some categories of undocumented immigrants. #2020Census

But plainly the Trump administration in the main is going for the narrowest of ‘wins,’ a decision that the case - that *they* wanted expedited - is premature. 🤷🏻‍♂️

In any event, given that the apportionment numbers now look like they may not come out until after 1/20, this case could very quickly become moot - though Wall tied to hold out the possibility that the President could get apportionment numbers before Inauguration Day. #2020Census

Aside: It probably won’t, but SCOTUS also could just sit on the census case until after 1/20 and then rule - in which the decision would be in ‘New York v. Biden’ rather than ‘New York v. Trump.’