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Donald Trump will no longer be president in two months. But an unconstitutional memorandum he handed down last July could potentially shape both US policy and American elections for the next decade, if the Supreme Court, scheduled to hear the case on November 30, allows that memo to take effect.

The Constitution provides that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Nevertheless, Trump’s memo claims that “aliens who are not in a lawful immigration status” should not be counted when seats in the House of Representatives are allocated following the 2020 census.

The memo, in other words, violates the unambiguous text of the Constitution, as well as federal laws governing who should be included in census counts.

An estimated 10.6 million undocumented immigrants live in the United States, and nearly 20 percent live in California. So the nation’s largest blue state could lose as many as three House seats if Trump succeeds in his plans to cut these immigrants out of the apportionment count. (It is likely that the red state of Texas would also be hit hard — but Texas’s Republican legislature is likely to draw gerrymandered maps that would impose the cost of any lost House seats on Democrats. California uses a bipartisan redistricting commission to draw legislative lines.)

The courts have thus far approached Trump’s memo with considerable skepticism. Four different three-judge panels have all unanimously concluded that Trump may not exclude undocumented immigrants from the census count. That means that a dozen judges, some appointed by Democrats and some by Republicans, all agree that Trump’s memo is unconstitutional.

The legal questions in these cases, in the words of one lower court that rejected Trump’s arguments, are “not particularly close or complicated.”

Nevertheless, the Supreme Court will hear oral arguments in Trump v. New York, one of the four cases challenging Trump’s unconstitutional memo.

The mere fact that the Court will hear this case does not necessarily mean that a majority of the justices are inclined to side with the lame-duck president. The justices normally get to pick and choose which cases they want to hear — ordinarily, four justices must agree to hear a case before it can be argued in the Supreme Court. But federal law sometimes requires the Court to decide cases that involve time-sensitive, election-related issues, such as how many seats each state will have in the next House of Representatives.

New York is one of these rare cases that arise under the Court’s mandatory jurisdiction. The justices cannot simply ignore this case even if they agree with the lower courts that ruled against Trump.

So it’s possible, perhaps even likely, that the Supreme Court will agree with the unanimous consensus of the lower court judges who’ve considered Trump’s memo and rejected it. Nevertheless, with six conservatives on the Court — including three Trump appointees — there is no guarantee that Trump will lose.

Trump claims he gets to decide who counts for purposes of apportionment

Trump’s memo claims that the Constitution’s provisions, governing who should be counted for purposes of apportionment, should not be read literally. “Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census,” Trump says in his memo, “that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.”

He’s not wrong that some foreign nationals, who may be physically present in the United States during a census, are not counted. Tourists, foreign diplomats, international businesspeople, and other non-citizens who temporarily visit the United States typically are not included in the census. “The term ‘persons in each State,’” Trump’s memo fairly reasonably notes, “has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

This general premise — that only “inhabitants” of a state, and not temporarily foreign visitors, should be counted by the census — is fairly uncontroversial. But Trump then claims the power to decide who counts as an “inhabitant” for census purposes. “Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment,” his memo argues.

And Trump, according to his lawyers, “validly exercised that judgment in deciding to exclude illegal aliens ‘to the maximum extent feasible and consistent with the discretion delegated to the executive branch.’”

But Trump’s lawyers do not cite an actual statute giving Trump the power to determine who counts as an “inhabitant” of a state, and the federal laws governing the census suggest that Trump does not have this power. Those laws provide that the secretary of commerce shall report the “total population by States” to the president once the census is done counting individuals, and they require the president to “transmit to the Congress a statement showing the whole number of persons in each State” once he is done reviewing the census. These references to the “total population” and the “whole number of persons” suggest that the president may not pick and choose who is counted.

Moreover, as the lower court that ruled against Trump in New York held, “it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded” from the census by claiming that they are not “inhabitants” of a state. “To the contrary,” the court explained, while quoting from Merriam-Webster’s dictionary, “the ordinary definition of the term ‘inhabitant’ is ‘one that occupies a particular place regularly, routinely, or for a period of time.’”

Nevertheless, the Supreme Court will hear oral arguments in Trump v. New York, one of the four cases challenging Trump’s unconstitutional memo.

The mere fact that the Court will hear this case does not necessarily mean that a majority of the justices are inclined to side with the lame-duck president. The justices normally get to pick and choose which cases they want to hear — ordinarily, four justices must agree to hear a case before it can be argued in the Supreme Court. But federal law sometimes requires the Court to decide cases that involve time-sensitive, election-related issues, such as how many seats each state will have in the next House of Representatives.

New York is one of these rare cases that arise under the Court’s mandatory jurisdiction. The justices cannot simply ignore this case even if they agree with the lower courts that ruled against Trump.

So it’s possible, perhaps even likely, that the Supreme Court will agree with the unanimous consensus of the lower court judges who’ve considered Trump’s memo and rejected it. Nevertheless, with six conservatives on the Court — including three Trump appointees — there is no guarantee that Trump will lose.

Trump claims he gets to decide who counts for purposes of apportionment

Trump’s memo claims that the Constitution’s provisions, governing who should be counted for purposes of apportionment, should not be read literally. “Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census,” Trump says in his memo, “that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.”

He’s not wrong that some foreign nationals, who may be physically present in the United States during a census, are not counted. Tourists, foreign diplomats, international businesspeople, and other non-citizens who temporarily visit the United States typically are not included in the census. “The term ‘persons in each State,’” Trump’s memo fairly reasonably notes, “has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

This general premise — that only “inhabitants” of a state, and not temporarily foreign visitors, should be counted by the census — is fairly uncontroversial. But Trump then claims the power to decide who counts as an “inhabitant” for census purposes. “Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment,” his memo argues.

And Trump, according to his lawyers, “validly exercised that judgment in deciding to exclude illegal aliens ‘to the maximum extent feasible and consistent with the discretion delegated to the executive branch.’”

But Trump’s lawyers do not cite an actual statute giving Trump the power to determine who counts as an “inhabitant” of a state, and the federal laws governing the census suggest that Trump does not have this power. Those laws provide that the secretary of commerce shall report the “total population by States” to the president once the census is done counting individuals, and they require the president to “transmit to the Congress a statement showing the whole number of persons in each State” once he is done reviewing the census. These references to the “total population” and the “whole number of persons” suggest that the president may not pick and choose who is counted.

Moreover, as the lower court that ruled against Trump in New York held, “it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded” from the census by claiming that they are not “inhabitants” of a state. “To the contrary,” the court explained, while quoting from Merriam-Webster’s dictionary, “the ordinary definition of the term ‘inhabitant’ is ‘one that occupies a particular place regularly, routinely, or for a period of time.’”

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Before joining Vox, Ian was a columnist at ThinkProgress. Among other things, he clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit and served as a Teach For America corps member in the Mississippi Delta. He received a B.A. in philosophy from Kenyon College and a J.D., magna cum laude, from Duke University, where he served as senior note editor on the Duke Law Journal and was elected to the Order of the Coif. He is the author of Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted. His reporting is partially supported by a grant from the New Venture Fund.

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