Amicus Temporary within the Congressional Apportionment Case At present Earlier than the Supreme Courtroom –

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Earlier this week, the University of Texas law professor, Sanford Levinson, and I filed an amicus letter in Trump versus New York, a major case currently on the Supreme Court. The case includes a lawsuit by New York and other state and local governments against the Trump administration’s plan to exclude undocumented immigrants from the population who determine the distribution of seats in the House of Representatives. As we explain in the letter, the administration’s position contradicts the text and the original meaning of the Constitution – both the original apportionment clause in Article I, Section 2 and the modified version in Section 2 of the Fourteenth Amendment.

The letter expands on the points that were made in my most recent Los Angeles Times on this case in much shorter form. Here is an excerpt from the letter that summarizes the most important aspects of our reasoning:

The Constitution requires the federal government to distribute the seats in Congress “among the various states” based on the number of “people” in each state. US Const. Art. I, § 2; seeid. to change. XIV. In an unprecedented decision, the President made it “the policy of the United States to exclude foreign nationals who are not in legal immigration status from the partition”. Since this policy is contrary to the text of the Constitution and its original public meaning, any effort to enforce this policy by excluding undocumented persons from the division of Congress is unconstitutional.

[E]The exclusion of undocumented immigrants is contrary to the apportionment clause’s order that the government base the division of Congress on the number of “people” living in each state. US Const. Art. I, § 2. “Persons” is a broad term and was just as broad when it was founded. Then as now, it applied to all people.

While this simple language is at first sight broad enough to include undocumented immigrants living in a state, the surrounding words and texts from elsewhere in the constitution confirm that the authors understood “persons” to be a broad and general term. For example, the apportionment clause excludes “Untaxed Indians” from the apportionment count. Since Indians were viewed as non-citizens loyal to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment basis if “persons” excluded foreigners or those loyal to any sovereign other than the United States. The use of “citizens” in other provisions by the Constitution also underscores that the drafters distinguished between “persons” and “citizens” – a subset of “persons …”.

The complainants’ arguments to the contrary cannot overcome these points. The complainants never address the ordinary meaning of “persons” or the term “Indians not taxed”, which would be superfluous if the authors understood by “persons” to mean the exclusion of foreigners. Instead, the complainants rely on the language of the apportionment clause before they learned about stylistic changes in the style committee. Since this language-based division is based on number of “residents” rather than “persons”, the complainants claim that the authors intended to exclude foreigners. The complainants distort the meaning of “residents”. According to the complainants from the founding period, residents are those people who intend to stay somewhere indefinitely. Undocumented immigrants, by and large, intend to remain in the United States indefinitely. The applicants’ suspicion that some of these immigrants might at some point be removed cannot change their intention to stay here. That intention is what matters.

I should perhaps note that Sandy Levinson and I differ on a great many controversial constitutional issues – probably much more than we can agree. However, we are completely in agreement on this point.

The letter goes into detail on issues such as why undocumented immigrants are different from tourists and foreign diplomats (who historically have not been counted for apportionment) and why there is nothing unusual or inherently uncomfortable to include people in apportionment counts who did not have suffrage. Indeed, for much of American history, a significant majority of those counted for the partition did not have that right.

Conservative columnist George Will dedicated his Washington Post column today to our letter, advocating our position:

The Framers understood “persons” in the broadest sense, with the only exception that Indians were not taxed because they were considered non-citizens owed to certain political communities: their tribes. The Framers would not have explicitly excluded Indians who were not taxed if “persons” excluded foreigners or anyone who is under any government other than the US government. So the Framers clearly meant “persons” to include immigrants.

Most Framers, Somin and Levinson said, did not believe that the federal government had authority to exclude immigrants – there was no significant federal immigration restriction until 1875 – so they had little intention of excluding “illegal” immigrants from the division. In addition, the authors expected that the number of members of Congress would include more than half the adult population who were ineligible to vote because of gender or property requirements.

Conspiracy-oriented readers (after all, this is the Volokh Conspiracy!) Might wonder if I somehow orchestrated the Will column in advance to promote our mission. The answer is no. Will found the assignment and decided to write about it all by himself.

It’s worth noting that the case could be dismissed as contentious. The Census Bureau recently announced that they are unlikely to be able to submit the data to the White House to exclude undocumented immigrants from the split before Trump leaves office on Jan. 20. The future Biden administration will almost certainly reverse Trump’s policies, potentially making the case moot.

If the Supreme Court rules the case, it is possible that it will dismiss the case to the plaintiff’s jurisdiction on the basis of its position without reaching the merits (although I believe that such a decision would be a grave error). Our letter does not address the ongoing problem.

Finally, I would like to thank Scott Eisman and his excellent team at Freshfields Bruckhaus Deringer for their excellent pro bono work in preparing the briefing with me at short notice.