WASHINGTON (Reuters) - U.S. Supreme Court justices on Monday grilled a lawyer for President Donald Trump's administration over its plan to exclude illegal immigrants from the population totals used to allocate congressional districts to states, a facet of Trump's hardline immigration policies being pursued in his final weeks in office.
The court, which has a 6-3 conservative majority including three justices appointed by Trump, was hearing a scheduled 80-minute argument by teleconference. The justices are due to decide the case on a expedited basis, with a ruling expected before the end of the year. That would make it difficult for Democratic President-elect Joe Biden, set to take office on Jan. 20, to revisit Trump's plan if it is upheld.
The challengers to Trump's July directive include various states led by New York, cities, counties and immigrant rights groups. They have argued that the Republican president's move could leave several million people uncounted and cause California, Texas and New Jersey to lose seats in the U.S. House of Representatives.
House districts are based on a state's population count in the decennial national census.
The challengers have said Trump's plan would dilute the political clout of states with larger numbers of illegal immigrants, including heavily Democratic California, by undercounting their true populations and depriving them of House seats. If California loses House districts, that likely would mean Democrats lose House seats, benefiting Republicans.
There are an estimated 11 million immigrants living in the United States illegally. Until now, the government's practice was to count all people regardless of their citizenship or immigration status. The U.S. Constitution requires the apportionment of House seats to be based upon the "whole number of persons in each state."
The challengers have argued that Trump's policy violates both the Constitution and the Census Act, a federal law that outlines how the census is conducted. Trump's lawyers said in court papers that he acted within his authority and that the challengers lacked the necessary legal standing to bring the case.
The justices wrestled with whether it is premature for the court to rule now when it is not clear whether the administration will be able to implement its plan.
Conservative Justice Samuel Alito, in questioning Acting Solicitor General Jeffrey Wall during the argument, said that for the administration to exclude all of the illegal immigrants living in the United States from the population count "seems to me a monumental task."
"I would think you would be able to tell us whether that remains a realistic possibility at this point," Alito said.
After conservative Justice Amy Coney Barrett, a Trump appointee, asked about the fact that the government during the entire history of the United States has included illegal immigrants in the population count, Wall acknowledged that this was the case and added that this represented "the best argument for the other side."
Barrett told Wall that a lot of the historical evidence and longstanding government practice "really cuts against your position."
Wall suggested that the court allow Trump's administration to proceed with its plans and then rule on the legality after the fact if there are legal challenges at that time.
"Isn't that going to be like unscrambling the eggs?" conservative Chief Justice John Roberts asked.
Even if the administration can exclude some groups of immigrants, such as those held in detention, it may not be enough to alter apportionment, Wall conceded.
"Based on my understanding from the Census Bureau there is a real prospect that the numbers will not affect the apportionment," Wall said in response to a question by liberal Justice Sonia Sotomayor.
LOWER COURT DECISIONS
A three-judge panel in New York ruled against the administration in September. Federal courts in California and Maryland have reached the same conclusion in other cases though one court in Washington ruled for Trump.
By statute, the president is due to send Congress a report in early January with the population of each of the states and their entitled number of House districts.
Once states are allocated their districts, they themselves draw the boundaries for the districts, which will be used first in the 2022 congressional elections. The number of House seats for each state also determines how many votes that state gets in the Electoral College, the system used to determine the winner of presidential elections. In a close election, one or two electoral votes could swing the outcome.
Census data also guides the allocation of billions of dollars a year in federal funding to states.
The census itself does not gather data on a person's citizenship or immigration status. Trump's administration would base its numbers on data gathered elsewhere, though it has not explained the methods being used.
Wall during the argument did not detail the methods the administration planned to use.
The Supreme Court last year ruled 5-4 against Trump's effort to add a citizenship question to the census. Critics said the question was intended to frighten immigrants from taking part in the population count and artificially reduce population numbers in heavily Democratic areas, also to benefit Republicans.
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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