How President Trump can use 14th Amendment to put citizenship question back on the 2020 Census
President Trump holds winning cards on the Census citizenship question, both politically and legally. An overwhelming majority, 67% of Americans, see such a question as legitimate, and those who want to obscure the difference between citizens and non-citizens have an argument that will not add to the ranks of those voting Democrat in the 2020 presidential race. Moreover, despite media spin ("American pride has hit an all-time low, a poll finds") emphasizing the increase in the number of Americans who aren't proud (almost all of the increase among Democrats, who love America only when a Democrat is president), fully 72% of Americans are "extremely proud" or "very proud" of being an American.
With progressives increasingly defining themselves as anti-American and the Democrats' presidential field intimidated by the left extreme of their base, President Trump's struggle to include a citizenship question can be positioned as a fight for the interests of Americans in contrast to the interests of border-violators — especially in light of a convincing legal strategy that somehow escaped the notice of the solicitor general of the United States, Noel Francisco, whose office argues the federal government's cases in court.
David B. Rivkin, Jr. and Gilson B. Gray write in the Wall Street Journal:
Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be "reduced in the proportion which the number of such ... citizens shall bear to the whole number of ... citizens ... in such state." This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.
The 14th Amendment was adopted in 1868, and this provision meant to secure the voting rights of newly freed slaves. But it wasn't limited to that purpose. An earlier version of Section 2, introduced in 1865, specifically referred to limits on suffrage based on "race or color," but the Senate rejected that limitation. The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).
Section 2 also applies to every state, a point Rep. John Bingham, the amendment's principal drafter, emphasized during the floor debate: "The second section ... simply provides for the equalization of representation among all the States in the Union, North, South, East, and West. It makes no discrimination."
Here is how the president — a man who loves winning — wins:
The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.
That would trigger another round of litigation. Opponents would choose a federal district court likely to block it again, and the Justice Department would have to seek the Supreme Court's intervention during its summer recess. While rare, such an emergency review has happened before. With the justification for the citizenship question being clear and compelling, the administration should prevail.
Hat tip: Mike Nadler.