Published Tue November 24, 2020 1:00 p.m. by John Baker
This article is part of a symposium previewing Trump versus New York.
John S. Baker Jr. is a professor emeritus at the Louisiana State University Law Center. He submitted an amicus letter in support of the federal government.
At next week’s hearing in Trump v. New York, judges should ask the administration why it hasn’t excluded all foreigners from calculating the division of Congress, whether they are legally or illegally in the country.
The Trump administration has the right to illegally exclude people in the country from the division. However, it should also exclude all other foreigners, for example foreign students studying on a student visa. No foreigner qualifies as a “resident”, as this term was understood when it was founded. The Supreme Court in Franklin v Massachusetts (1992) agreed that only “residents” count for the division.
Representing foreigners in the House of Representatives and electoral college is contrary to both constitutional and common sense. Still, the Census Bureau has given every foreigner living in the United States a political representation equal to that of American citizens under the age of 18. The changes of the 14th, 15th, 19th and 26th gave the impression that representation also includes voting. However, citizens under the age of 18 and non-citizens of any age who are permanent residents cannot vote. Even so, both groups are US nationals who are represented in the House and Electoral College as they are counted in the bases for division.
The exclusion of foreigners from the division should be under Wesberry v. Sanders (1964) would be a breeze. The case is known to establish the doctrine of the one-person-one vote in congressional elections. The finding that Georgia’s method of drawing congressional districts with vastly different numbers of voters is against the Constitution also applies to the inclusion of non-residents in the bases for the division by the Census Bureau. This inevitably leads to very different numbers of “residents” among the congressional districts in different states.
The inclusion of foreigners in the division increases the value of the individual votes in districts of some states and decreases the value of the votes in districts of other states. Congressional candidates in districts with large foreign populations face fewer actual voters than in districts without many foreigners. Unfortunately the government mandate does not follow the one-person-one-vote principle. Wesberry is quoted twice in his letter, but only to criticize his use by the lower court.
The government’s argument is almost entirely legal, and relies on Franklin, who upheld a decision by the Department of Commerce ending the practice of banning federal foreign personnel from splitting bases in their home states. The government makes two important points: (1) The Census Act allows both the use of administrative records and the creation of two groups of population figures in the conduct of the census and the listing of numbers. and (2) that the Reallocation Act does not require the President to include all persons illegally residing in the country in the allocation basis.
On the first point, the use of administrative records is an established practice. The creation of two series of numbers is not. Still, the Franklin court said: “[o]Out of respect for the separation of powers and the unique position of the president, ”the president acknowledged executive control over the census. It would be contrary to the separation of powers if the president were unable to tell a subordinate to provide certain information, including a second set of numbers that exclude all foreigners from the division.
As for the second point, as I stated in my amicus letter, the Constitution requires the exclusion of persons who are not “residents” from the division, as this term was used at the time of ratification of the Constitution and at the time of the 14th Amendment understood, following the relevant language in Article I, Section 2, has been ratified.
The government agrees that the Redistribution Act only requires the census of “residents” and tells the constitutional story that affirms the meaning of a “resident”. However, it avoids adopting the constitutional position that non-residents must be excluded from the division. Instead, the government briefly claims that the Reallocation Act allows the President to decide at his own discretion which foreigners are “residents” and which are not. Only towards the end of this dispute about the inhabitants does the letter say: “Ultimately, the interpretation of the term” inhabitant “, which stipulates the inclusion of all illegal foreigners in the apportionment basis, would contradict the structure of the constitution.”
The Census Bureau has dogmatically insisted for decades that the Constitution compel it to implement policies which the government rightly says are “contrary to the structure of the Constitution.” In this case, however, the government relies largely on Franklin, who takes an appreciative approach to the exercise of discretion by the Census Bureau. The government is unwilling to say what it believes is true, which is that the Census Bureau has long unconstitutionally included non-residents in the population numbers used for its apportionment.
As a result, the government’s position is untenable. While the government recognizes that the current practice of including non-residents in the split is unconstitutional, it also argues that the president has discretion, but no obligation, to exclude them.
For the court’s originalists, the government’s case would be stronger if all foreigners were excluded and the constitutional argument made clear. For the court’s pragmatists, the government should allay any concerns about federal funding of states with many foreigners by highlighting two series of numbers: one for allocation and the other, including foreigners, for the legal purpose of allocating federal funds to states. States that are unlikely to win or lose a congressional district care most about federal funding.
President Donald Trump can even triumph over a Biden administration if the court either rules that the case is unjustified or that the President cannot be denied information from the Census Bureau. In early January, Trump could send Congress a series of numbers excluding all foreigners to split and a second series of federal funding numbers. A Biden government would try to negate Trump’s actions, but the states concerned would have the necessary data to support the constitutional challenges for including foreigners in the partition. These challenges would give the Supreme Court an opportunity to definitively correct the longstanding constitutional error in the allocation of house seats.
John Baker, Symposium: All foreigners should be excluded from the division. This is what the constitution requires.
SCOTUSblog (November 24, 2020, 1:00 p.m.), https://www.scotusblog.com/2020/11/symposium-all-foreign-nationals-should-beclotted-from-apportionment-thats-what-the -constitution- requires /