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NEW YORK (Reuters) – A panel of judges on Thursday declared illegal a directive by President Donald Trump to exclude people in the United States illegally from representation when distributing seats in Congress.
The decision by a three-judge panel, which could be appealed to the United States Supreme Court, is a victory for all 38 states, cities and counties, as well as several non-profit immigrant rights organizations, who sued over the directive of July 21.
The mostly Democratic plaintiffs, led by New York state, accused the Republican president of having a “xenophobic” purpose by pushing an unconstitutional directive that reflected “discriminatory animosity” toward Hispanics and other immigrant communities.
They said the directive could leave several million people uncounted and shift some House seats, with California, Texas and New Jersey most likely to suffer losses.
In its 86-page decision, the panel said Trump exceeded his legal authority by ordering the directive.
He said federal law required the use of a set of numbers to count people for census and proration purposes, and that as long as they resided in the United States, “illegal aliens qualify as ‘persons in’ a ‘state'” who should be counted.
“The president must act in accordance with and within the limits of the authority granted by Congress,” the panel said. “We concluded that the president did not.”
The White House and the Commerce Department, which oversees the census, did not immediately respond to requests for comment.
Thursday’s decision is a new census-related legal setback for Trump, who has made curbing immigration a focus of his presidency and re-election campaign.
His directive came a year after the Supreme Court blocked his attempt to add a citizenship question to the census.
“President Trump’s repeated attempts to hinder, hamper, and harm an accurate census and subsequent distribution have failed once again,” New York Attorney General Letitia James said in a statement.
Defending the directive, government attorneys said Trump had wide discretion in deciding who to count and that any damage was speculative.
The plaintiffs responded that the directive would cause irreparable harm by dissuading immigrant households from participating in the census and reducing political power.
Census data is also used to allocate billions of dollars in federal funds.
“The law is clear: Every person counts in the census,” said attorney for the American Civil Liberties Union, Dale Ho, who represented the nonprofits.
The panel consisted of Circuit Judges Richard Wesley and Peter Hall, both appointed to the post by Republican President George W. Bush, and District Judge Jesse Furman, appointed by Democratic President Barack Obama.
(Reporting by Jonathan Stempel in New York; Additional reporting by Ted Hesson in Washington, DC; Editing by Sandra Maler, Leslie Adler, and Tom Brown)
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