This article is part of a symposium previewing Trump versus New York.
Hans von Spakovsky is a Senior Legal Fellow at the Heritage Foundation’s Institute for Constitutional Government and manager of Heritage’s electoral reform initiative.
In the Trump v. New York case, the Supreme Court should only deal with the constitutional and legal issues: Whether President Donald Trump had legal authority to illegally exclude non-nationals of the country from the population used to partition Congress. The political issue is of course very important. What the president did was basically fair. And under the precedent of the Supreme Court in Franklin versus Massachusetts, Trump was also in his legal power to do so.
First on the political issue and the question of fairness. For the past four years the political arena has been filled with allegations of Russian “interference” in our elections. Special adviser Robert Mueller has in fact charged a number of Russians with involvement in these efforts. If you asked the public if they thought any of the Russians accused could make a political donation to a federal candidate – be it Trump or someone running for Congress – if he were here illegally, I would have no doubt that they would say “no” consistently.
Then if you ask if the same Russian can be a candidate for Congress, you get the same unyielding answer. And if you ask if this Russian can vote in federal elections, including congressional elections, the answer is still a resounding no.
Why would New York State, or any of the other democratically controlled state and local governments questioning the President’s actions, argue that Russians (and other non-citizens) who are not legally here should be included in the population that is used to divide the political? Power of the House of Representatives? Just one reason: to warp the house and give states with large illegal immigrant populations more members of Congress (and more political leverage) than they are allowed to receive depending on their population. This gives states an incentive to obstruct federal immigration law in order to increase the number of illegal immigrants living in those states.
The three-judge District Court, which gave New York a summary judgment and issued a permanent injunction banning the Commerce Department, Census Bureau, and any other government agency from implementing Trump’s July 21, 2020 memorandum, also misunderstood it legally and the Franklin misapplied decision.
Pursuant to Section 2 of the 14th Amendment, the representatives are allocated to the various states according to their respective numbers, counting the total number of persons in each state. The Secretary of Commerce is given legal authority under 13 USC § 141 (a) to conduct the census “in the format and content that he determines” and then to send a report to the President.
Pursuant to 2 USC § 2a (a), the President is instructed to send Congress “a statement showing the total number of persons in each state,” as determined by the ten-year census, and “the number of representatives each to whom State would be entitled … by the method known as the equal parts method. “In the July 21 memorandum from Trump, the secretary was expressly instructed to exclude non-citizens illegally residing in the country from the base population for apportionment purposes” as much as possible and consistent with the discretion of the executive branch.
As the Supreme Court in Franklin said, the role of the President in applying the “equal shares” formula to the basic population is ministerial. However, its role in determining the basic population – the number to which the formula is applied – is not ministerial. Indeed, the court found that 2 USC Section 2a (a) “does not limit the power of the President to direct the Secretary in making political judgments in relation to the conduct of the census”.
As the Justice Department convincingly argues in its brief, one such “judgment” is “whether a person should be considered a“ resident ”or an“ ordinary resident ”of a state, which is“ the luster ”that has historically been given to the constitution and legal term “persons” in each state. “In addition, the Franklin Court found that the key phrase” persons in any state, “used in both the Constitution and the Statute,” means[s] more than mere physical presence, and became widely enough to include an element of loyalty or permanent attachment to a place. “
Non-citizens who are here illegally – such as tourists or other temporary visitors – are not politically affiliated with any state or federal government. They cannot be drafted for jury duty or military service (if we still had a draft) because they owe their political loyalty to the homeland of which they are citizens. In addition, they have no “permanent bond” to a state, as they are illegally present in the country. You can be picked up, detained, and removed from the United States at any time by federal agencies.
The exclusion of individuals who have no loyalty or permanent attachment to a state is thus within the precedent set by the Franklin court – and within the precedent set by previous censuses which always excluded certain people. It is undisputed by the challengers in this case that the “residence criteria” established by the Census Bureau in 2018 for the 2020 census – following the same rules as for previous censuses – exclude non-citizens who have lawfully “visited the United States”. like on vacation or on a business trip. “If we can exclude non-citizens who are here temporarily and legally from the census, then why can’t we exclude non-citizens who are also here illegally and temporarily – that is, until they are caught and removed?
The district court’s analysis fails to correctly apply the law and Franklin precedent in all respects. For example, the court ruled that the President’s memorandum would somehow “deter” participation in the census. It did so with no evidence to support this conclusion; Even if it were true, it would be irrelevant. If the president has legal authority to determine the population used for apportionment purposes, no deterrent effect can be used to prevent him from exercising his legal authority.
The court also ruled that the President’s role in this decision was indeed ministerial and that he could not instruct the secretary to report any population other than the total population as determined by the census for apportionment purposes. However, this is in direct contradiction to the ruling by the Franklin Supreme Court that the President can make political judgments about which population is used for the apportionment formula. It also purposefully ignores the fact that the Census Bureau has long excluded other “whole persons” from the census, such as non-citizens who are in the country as tourists or for business reasons.
The inclusion of illegally living non-citizens here in the population used for the division makes as little sense in a representative democratic republic as it would make sense to allow them to vote, to make political donations or to run for office. And as the Franklin case shows, and as stated in a convincing amicus letter by constitutional scholars John Eastman and John S. Baker about the original meaning and history of the apportionment clause in the constitution, the president is well within his power to exclude these non-citizens. Eastman and Baker state that including non-citizens who cannot be legally resident would be inconsistent with the constitution because they are not “residents.” This is the term used in the Constitutional Convention, Federalist Papers, and Census Instructions for much of our history to identify those counted. “(Baker goes into this argument for SCOTUSblog in an earlier entry in this symposium.)
The Supreme Court should overturn the lower court’s opinion, dissolve the injunction, and not allow citizens ‘votes to be watered down and the distribution of states’ political power to be unjustifiably distorted by an apportionment calculation that includes non-citizens without legal status without allegiance to our nation.
Hans von Spakovsky, Symposium: Trump’s census policy is both fundamentally fair and legally sound.
SCOTUSblog (November 25, 2020, 12:45 p.m.), https://www.scotusblog.com/2020/11/symposium-trumps-census-policy-is-both-fundamentally-fair-and-legally-sound/