Mark Joseph SternVerified account

Kagan asks if Trump will exclude 700,000 DACA recipients from the census apportionment count. Acting Solicitor General Jeff Wall won't tell her. Kagan asks about the 3.2 million non-detained individuals in removal proceedings. Wall won't tell her. Kagan: "You're 30 days out!"

Several justices press Wall on the practical difficulties of excluding undocumented immigrants from the census apportionment count (which is impossible to do accurately). Wall won't give them a straight answer, which seems to frustrate the liberal justices and Roberts.

Kavanaugh is now summarizing the government's arguments that the case isn't ripe and the plaintiffs lack standing, then asking Wall if he described them correctly. He's probably looking for a way to dodge a ruling on the merits for now. Not sure four other justices will go along.

This is a surprise: Amy Coney Barrett begins by telling Wall that, as Breyer pointed out, "a lot of the historical evidence and longstanding practice really cuts against your position." She then suggests that excluding undocumented immigrants may go against Founding-era practice.

Barrett asks skeptically why undocumented immigrants who have lived in the U.S. for 20 years do not "reside" in the country for the purpose of census apportionment. Barrett tells Wall flatly: "Illegal aliens have NEVER been excluded as a category from the census."

Barrett asks Wall skeptically if excluding undocumented immigrants from the census count was "an unexercised discretion all along." Her questioning is over, and I THINK she sounds rather skeptical that Trump's policy is constitutional. But I'm still learning how to read her.

This was very awkward: Roberts calls on Sotomayor, but Alito completely ignores him and asks another question—and another, and another ... until Roberts cuts in to call on Sotomayor. Alito tries to keep speaking, but Roberts cuts in AGAIN to call on Sotomayor. Oof.

Kavanaugh tells New York SG Barbara Underwood that, as Barrett noted, "you have advanced forceful constitutional and statutory arguments" that the "categorical exclusion" of all undocumented immigrants is unlawful. But he speculates that Trump might just exclude "subsets."