Illegal aliens and the Census: Trump drops the other shoe

Not long ago, President Trump issued a Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census.  As the title telegraphs, it directs the Department of Commerce to provide the president with the information needed for him to exclude illegal aliens from his Report to Congress, to be filed in early January, apportioning seats in the House of Representatives among the states.

The action was not a surprise.  Last year, the Census Bureau tried to add a question about citizenship status to the 2020 Census, only to have the action knocked out by the Supreme Court over the fine points of administrative law — no justice questioned the right and power of the government to develop such information.

Trump responded with an executive order directing all agencies to cooperate with the Commerce Department to develop information about the citizenship status of the population, including, presumptively, numbers and locations of illegal aliens.  The recent memorandum was the logical follow-on to this earlier order, directing Commerce to submit this information along with the numbers developed under its Final 2020 Census Residence Criteria and Residence Situations (Residency Rule), which covers the many issues of who counts where for purposes of the Census, and which includes illegal aliens.

The enumeration developed via the Residency Rule is, in a normal Census, simply repeated by the president in his Report to Congress on apportionment.  To adjust it, Trump is relying on the principle, articulated by the Supreme Court in 1992, that the president has some ambit of discretion in converting the numbers he gets from Commerce into his final report on apportionment and that he can legally exercise it to exclude the illegals.

Within a couple of days, three major lawsuits were filed to block Trump's action, by a coalition of 20 states and by the ACLU (both in N.Y.), and by Common Cause (in D.C.).

And already pending in Alabama is Alabama v Department of Commerce, which contends that the failure to exclude illegal aliens from the apportionment challenge constitutes an unconstitutional violation of the rights of legitimate voters and that this contradicts the rules embodied in the Supreme Court's series of one-person-one-vote cases.  This litigation has attracted a slew of intervenors, including many of the plaintiffs in the recently-filed cases, who of course argue the exact opposite: that illegal aliens must be included for purposes of apportionment.

The outcome depends on the proper interpretation of the provision of the 14th Amendment that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

As might be expected, lawyers have worked on this language, and a long history discusses who counts as being "in a state."  How should Census treat prisoners, students, expats, tourists, diplomats, travelers, military personnel, and so on?

The upshot is that to be counted as "in a state," one must be an "inhabitant," a term with its own ambiguities, but not as open-ended as "person."

Trump's Executive Order and Memorandum, together with the Alabama complaint, do a good job of articulating the legal and policy reasons for excluding illegal aliens from the apportionment count. For more detail, see the series of articles published in 2019 in American Thinker: Trump should go full frontal after Supreme Court ruling on Census; Roll Tide: Alabama versus the Census; Trump and Barr counter-punch on the Census and illegal aliens; SCOTUS Loses Its Census over Citizenship.

For the argument that illegal aliens must be included, a good tour can be found in the three recently filed complaints, which are as much Progressive essays as legal arguments.

It is far from clear how this battle will develop, given the multiplicity of cases filed, parties, interests, and issues, but it is certain that the developments must come thick and fast. By law, the President's Report to Congress on apportionment must be filed within a week after Congress reconvenes in January, so strong pressures exist to get a final decision, which must come from the Supreme Court, before then.

James V DeLong lives in the Shenandoah Valley of Virginia.

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