On Monday, the Supreme Court heard oral arguments in a case about the Trump Administration’s plan to exclude undocumented immigrants from the census population counts used to determine the apportionment of seats in the U.S. House among the states. The origins of this case go back to the founding of the United States. 
The Constitution of 1787 included the infamous “three-fifths clause,” which stated that House seats would be apportioned among the states on the basis of “the whole number of free persons” and “three-fifths of all other persons.” In other words, African-American slaves held in bondage would be counted as three-fifths of a person, giving the slave states additional representation in the House.
After the Civil War, several amendments were added to the Constitution. The Thirteenth Amendment prohibited slavery, and the Fourteenth Amendment based the apportionment of House members among the states on a census “counting the whole number of persons in each state.” The case before the Court involves the meaning of this phrase in the Fourteenth Amendment.
Department of Justice attorneys argue that “the sovereign” has the right to determine the “persons” to whom the Fourteenth Amendment’s provision applies. 
There are several problems with this argument. First, it gives the Executive Branch power to override the clear meaning of a phrase in the Constitution, without going through the elaborate process of proposing and ratifying an amendment to the Constitution. Second, it treats undocumented immigrants as something less than “persons,” and, as such, goes back to the discredited approach of the three-fifths clause. 
During the oral argument, all of the Justices except Clarence Thomas and Samuel Alito expressed varying degrees of skepticism of the Justice Department’s argument on the merits of the case. Several Justices pointed out that what the Trump Administration is trying to do here is very similar to what the Court earlier ruled was forbidden, adding a question about citizenship status to the census.
Several of the Supreme Court’s conservatives, however, seemed to be looking for a way to avoid having to decide the case on the merits. Some asked whether the State of New York, one of the plaintiffs, even had standing to bring the case. Until the final census numbers are released, New York does not know whether its allocation of House seats would or would not be affected by excluding some immigrants. 
Other Justices referenced news articles reporting that processing of the Census data may not be complete before Jan. 20, and the Trump Administration’s time in office might end before any allocation of House seats is released. 
Lawyers representing New York and organizations challenging the Administration’s plans argued that the case is ready for decision now. If the Supreme Court puts off a decision on the merits until census results are released, the entire apportionment and redistricting process for the House to be elected in 2022 could fall behind schedule.
With many states having candidate filing deadlines and primary elections between March and June 2022, legislatures or redistricting commissions in those states need to have final maps of the new congressional districts in place by the end of 2021. Another round of litigation, ending up in the Supreme Court, could jeopardize the timely release of the new congressional district maps.
The Supreme Court will likely release its decision in this case within the next few weeks. While it is always difficult to predict the outcome of a case on the basis of the oral arguments, Monday’s questioning showed that the Justices appear to be divided into three groups, none of which commands a majority of the Court. Clarence Thomas and Samuel Alito would uphold the Administration’s plans. Stephen Breyer, Sonia Sotomayor, and Elena Kagan would keep current census practice intact. John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett would like to avoid making a decision on the merits of the case at this time. 
Eric L. Davis is professor emeritus of political science at Middlebury College.