Roll Tide: Alabama versus the Census

In Department of Commerce v. New York, Chief Justice Roberts joined with the Court's four social justice warriors (Ginsburg, Sotomayor, Breyer, Kagan) in refusing to uphold the Commerce Department's decision to add a citizenship question to the 2020 Census.

The decision was important but should not be overblown.  Roberts's rationale was based on a narrow point and is remediable.  On the substance, he was with the four conservative justices.

The flaw in the administration's approach is that the Department of Commerce chose to peg its decision to a need to obtain better information to enforce the Voting Rights Act.  No one believes this, and Roberts said, quoting a distinguished judge of his student days, "Our review is deferential, but we are 'not required to exhibit a naiveté from which ordinary citizens are free'" (Slip. Op. at 28).  He wants Commerce to level with the Court.

And so it should.  The real issue, as every fool knows, is that the Census includes illegal aliens for purposes of apportioning legislative seats and electoral votes, a practice with profound effects on our political system.  Understanding the dimensions of the issue is crucial to the functioning of our polity.

Monica Showalter and Daniel John Sobieski have discussed these effects with their usual perspicuity here in AT.  One would be well advised to read these articles, because you certainly will not learn about the problems in the 92 pages of Supreme Court opinion.  The closest you will come is reading the four SJWs' concern that asking a citizenship question will cause an undercounting of illegal aliens, and this will deprive these non-citizens of the representation to which they, and the states that harbor them, are entitled. 

The issue of the Census question on citizenship is important, but more significant is a case in a U.S. District Court in Alabama, in which the state and U.S. representative Mo Brooks claim that the Constitution actually prohibits inclusion of illegal aliens in the population base for purposes of apportionment.

The MSM pay no attention to this lawsuit because they want to keep the Overton Window firmly fixed.  But the plaintiffs have serious arguments, and even if they lose, they should open our collective eyes to possibilities of congressional or presidential action.

Analysis starts with Section 2, Clause 3 of the Constitution, which allocates congressional seats among the states "according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons," three fifths of the number of all other persons.  It then provides for an accounting of these numbers in a manner to be directed by Congress.

After the Civil War, the 14th Amendment, adopted in 1868, changed the formula slightly.  Slavery was dead, and so was the three fifths clause, so the 14th Amendment specified apportionment "by counting the whole number of persons in each state."

Two ambiguities becloud this seemingly simple language.

The first is the meaning of "persons."  In 1789, the category "illegal alien" would have been incomprehensible, because almost everyone was an immigrant or close to it, the borders were open, and citizenship was easily obtained.  The term "inhabitant" was used interchangeably with "person," as shown by the 1790 Census Act.  Clearly, the Framers did not want limit enumeration to citizens, but "illegal aliens" was an empty set.

The second ambiguity is who counts as "in a state."  The "you must count every nose" argument quickly falls to the reductio ad absurdum: if a million-person Canadian army invaded Maine, would the state be entitled to additional congressional seats?

In fact, the Census Bureau makes choices.  It counts expat Americans who are not in a state because they work overseas for the federal government, but it does not count other expats.  Domestic travelers are counted in their home states, not in their physical locations on April 1.

The bureau does not count foreign tourists, even though they are, obviously, in a state.  But many illegal residents came in legitimately and then overstayed their visas, so when do they change from "foreign visitors," thus uncounted, into countable inhabitants?  What if the visitor announces an intention to stay even before his visa runs out?  What about illegal aliens who are under deportation orders, subject to immediate removal?  If one's plane departs on March 31, is he uncountable, but if weather delays it a day to the official April 1 Census day, then he adds to the state's congressional representation?  What about the Texas census-taker who sees someone climbing the wall — how much of the body must be over the line?

It is oddly difficult to discern the reasons for the bureau's choices.  In preparation for the 2020 Census, it had three rounds of notices in the Federal Register on its Residence Rule, but it stayed relentlessly trivial.

It noted: "One commenter expressed concern about the impact of including undocumented people [sic] in the population counts for redistricting[.]"  The bureau response was to dismiss this as "out of scope for this document."  So for what document would it have been "in scope"?  

Much as the bureau might like to pretend there is nothing to see here, there is in fact a lot to consider.  Daniel Horowitz, editor of the Conservative Review, documents a number of useful sources in his article "It's time to stop counting illegal aliens in the census" and his book Stolen Sovereignty: judicial opinions to the effect that someone in the nation illegally is not really "here," an 1860s treatise explicating the 14th Amendment, and other writings.  The papers in Alabama's lawsuit containing arresting arguments on the original public meaning of the constitutional language.  A Congressional Research Service report, "Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes" (2012) by two attorneys who, probably wisely, chose to remain anonymous, provides a rich volume of material, even though their conclusions are dubious.

Boiling all this down, the Alabama litigation raises five major issues about including illegal aliens in the official enumeration for apportionment purposes:

  1. That doing so violates the Constitution because the provision limiting enumeration to persons within a state is meant to include only legal inhabitants, not those here illegally.
  2. That the clause is ambiguous, so Congress could pass a law specifying whether to include illegals.
  3. While Congress could pass a law, it has not done so; instead, it punted to the secretary of commerce when it directed him to conduct the Census "in such form and content as he may determine" (13 USC sec. 141).  He has, in the past, included illegals, but he has authority to reverse that decision.
  4. That if the clause is read as allowing, but not compelling, inclusion of illegal aliens, the bureau's decision to include them transgresses the constitutional rights of U.S. citizens by diluting their votes in a manner prohibited by the Supreme Court's series of one-person, one-vote decisions.
  5. That the bureau's decision to include illegal aliens is not explained in the  Residence Rule, in contradiction of elementary administrative law requirements.  (Note that a lack of explanation was Roberts's ground for remanding the Census question case, in which the four SJWs joined him.  It will be interesting to see if they can explain why a total lack of any explanation for the Residence Rule is acceptable.

To add to the complexity, the government moved to dismiss the Alabama complaint on the grounds that plaintiffs lack standing, a move slapped down by the judge on June 6.  If you wonder whom the bureaucracy works for, look no farther.  It is hard to imagine a witting secretary of commerce taking that position, which is at odds with the policy views of the administration, but the Deep State probably did not bother to ask him.

It is going to be an interesting ride.

Image: CSPAN via YouTube.

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