Trump and Barr counter-punch on the Census and illegal aliens

The term "Overton Window" describes the bounds of acceptable public discourse, the range of ideas the public is willing to consider seriously.

In a news conference last Thursday, President Trump and A.G. Barr expanded the Overton Window on illegal immigration when they said that they would give up on the effort to add a citizenship question to the Census but would use existing government data bases to obtain information on the numbers and locations of illegal aliens.

In explaining his determination, Trump said:

This information is also relevant to administering our elections. Some states may want to draw state and local legislative districts based upon the voter-eligible population.

 Barr added:

For example, there is a current dispute over whether illegal aliens can be included for apportionment purposes.  Depending on the resolution of that dispute, this data may be relevant to those considerations.  We will be studying this issue.

For decades, the question of including illegal aliens in the official Census count for purposes of apportioning U.S. House seats and electoral votes has not been discussed.  The Census Bureau includes them, and then the states use the same numbers for drawing their internal lines for U.S. House seats and state legislatures.

Now, with the increased attention to illegal immigration, it has become apparent that the issue actually involves two profound constitutional questions: first, whether illegal aliens must be counted for purposes of apportionment, and second, whether a state must count them in drawing its internal lines.

No definitive law exists on the first question.  The Commerce Department has not explained its decision to include illegal aliens and, in my view, can and should reverse it, for reasons explained here and here.

On the question of internal state apportionment, some Supreme Court law exists.  In 1966, the Court said, in Burns v. Richardson:

[No] decision [of] this Court [has] suggested that the states are required to include immigrants, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured.

And in Evenwel v. Abbott (2016), the Court said Texas was allowed to apportion according to total population.  It ignored the impact of illegal residents, despite the effort of some of the participants to raise the question, and left open the possibility that the state might be required to use total population. (It did not mention the language of Burns.) Clearly, the four social justice warriors on the Court would embrace the total population standard.  (Meh: legal, illegal, who cares?)

The importance of the Trump-Barr statements is that they are the first indication that the possibility of excluding illegal aliens from the counts for apportioning either state of federal seats is under official consideration.  A few commentators have suggested it, and a lawsuit filed by Representative Mo Brooks and the State of Alabama presents the arguments, but, as far as serious mainstream consideration goes, the Overton Window has been fixed.

Trump and Barr have shifted it.

And if you think the previous debate over the citizenship question has been vituperative, you ain't seen nuthin' yet.

The move also shows Trump's political acumen.  His opponents will now be forced to publicly defend the position that illegal aliens are constitutionally entitled to representation in U.S. legislative bodies, thus diluting votes of citizens and the representation of other legal residents, and that sanctuary cities are entitled to extra representation in proportion to their willingness to flout U.S. law.

As long as these arguments could be kept in the rarified air of courtrooms, they had a chance.  Presented to a public that has not been corrupted by modern legal education, their absurdity is patent.

James V DeLong lives in the Shenandoah Valley.

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