Justice Elena Kagan questioned why the administration needed the court to wait before ruling, asking Wall if the administration was working to count certain categories of immigrants, such as those who had final orders of removal, or were recipients of the DACA program.
"We can easily get to four to five million [immigrants] you have records on," she told Wall. "You're 30 days out, so it seems like you can know whether or not you can do matching."
Justice Amy Coney Barrett also questioned Wall, citing historical examples to argue that, at the time the Constitution was adopted, an inhabitant of the U.S. was considered a "dweller." Undocumented immigrants, she said, have never been excluded from the Census as a category.
If an undocumented immigrant has resided in the U.S. for 20 years, she asked Wall, why they would not be considered a resident.
On the merits of the case, Wall argued, undocumented immigrants do not meet the test of being considered lawful residents.
New York's solicitor general, Barbara Underwood, on Monday called the administration's argument "flatly inconsistent." The apportionment of representatives to a particular state has always included the number of people living there, including those ineligible to vote, she said.
People living in a state are not invisible, she said, despite their undocumented status. Their "presence requires attention from the government, and the need for representatives to give that attention," she said.
Underwood told Chief Justice John Roberts that the state wanted the court to declare the policy in violation of the law and halt the transmission of information from the Commerce Department to President Trump about undocumented immigrants, as part of the Census report.
However, she admitted that a separate communication from Commerce to the President on undocumented immigrants would not violate an injunction from the court.
Underwood also answered Justice Barrett that, if President Trump ultimately decided only to remove some undocumented immigrants from the apportionment count, that would require further litigation from states.
Trump's memo came after the Supreme Court in 2019 blocked an effort by his administration to include a citizenship question in the 2020 Census. After that ruling, the administration then demanded records from states, few of which complied with the request.
(Story continues below)
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