Judges skeptical toward Trump plan to exclude many immigrants from representation

NEW YORK, Sept 3- U.S. judges appeared skeptical on Thursday toward President Donald Trump’s recent directive to exclude people who are in the United States illegally from representation when apportioning congressional seats. A three-judge panel in Manhattan sharply questioned a lawyer defending Trump and the Department of Commerce against lawsuits by…

By Jonathan Stempel

NEW YORK, Sept 3 (Reuters) – U.S. judges appeared skepticalon Thursday toward President Donald Trump’s recent directive toexclude people who are in the United States illegally fromrepresentation when apportioning congressional seats.

A three-judge panel in Manhattan sharply questioned a lawyerdefending Trump and the Department of Commerce against lawsuitsby 38 U.S. states, cities and counties, plus several immigrantsrights nonprofits, over the July 21 directive.

The plaintiffs said the directive violated a requirement inthe U.S. Constitution to count the “whole number of persons ineach state,” and could shift seats in the House ofRepresentatives, with California, Texas and New Jersey mostlikely to lose representatives.

At Thursday’s hearing, Justice Department lawyer Sopan Joshisaid Trump had discretion to decide who is counted, that theconcept of “persons in each state” was “not particularlywell-defined,” and that any harm was speculative.

But Circuit Judge Peter Hall suggested it might be enoughthat a small number of people be affected for harm to exist.

U.S. District Judge Jesse Furman asked if the government hadhistorical precedent to exclude “illegal immigrants” from thecensus count or apportionment base.

“We have not been able to identify any,” Joshi said.

Judith Vale, a lawyer for New York Attorney General LetitiaJames, said Trump’s directive “violates more than 200 years ofhistory, practice and judicial precedent,” would impederedistricting and is already discouraging census participation.

“Defendants simply have no authority, no discretion tosubtract millions of undocumented immigrants,” she said.

The plaintiffs have also argued that Trump’s directive wasmotivated by “discriminatory animus toward Hispanics and otherimmigrant communities of color.”

Dale Ho, a lawyer for the nonprofits, rejected a governmentargument that media reports about the directive, not thedirective itself, might be causing confusion.

“Even in a dry season it is fair to trace the fire to thearsonist,” Ho said.

Furman said the panel will rule as soon as it can.

The case is New York et al v Trump et al, U.S. DistrictCourt, Southern District of New York, No. 20-05770.(Reporting by Jonathan Stempel; Editing by Dan Grebler)

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