The Constitution seems clear enough on how to use the population figures from the once-every-decade Census to apportion seats in the House of Representatives among what are now 50 states. The Constitution requires “an actual enumeration” (Amendment XIV, sec. 2), not an “incomplete” or “partial” enumeration.
Congress made the constitutional implication explicit in 1929 by specifying in the Census Act that in reporting Census figures to the president, the secretary of Commerce is required to include “the tabulation of total population by States.” Through two centuries of historical practice, the Census has included all persons residing in the United States, without regard to their immigration status.
President Trump defied these provisions and this practice by issuing a directive to Commerce Secretary Wilbur Ross on July 21 under the title “excluding illegal aliens from the apportionment base after the 2020 Census.” Trump claimed executive authority to adopt this policy and directed Ross to comply “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
A three-judge federal district court ruled in September, however, that Trump’s directive violated applicable statutory provisions. The court’s ruling, in a lawsuit led by the state of New York on behalf of 22 states and the District of Columbia, found that the presidential memorandum “violates the statutes governing the census and apportionment in two clear respects.”
Federal district courts had reached the same conclusion in two separate lawsuits, but the Supreme Court concluded last week [Dec. 18] that New York lacked legal standing to bring the lawsuit and that the suit was “premature” because the eventual injury to the Empire State – reduced representation in Congress and reduced federal funding -- from excluding illegal aliens from the state’s population count was “speculative.”
The Court’s unsigned opinion in Trump v. New York, issued apparently on behalf of the six Republican-appointed justices, leaves Trump free in his final month in office to submit an apportionment formula to Congress likely to disadvantage among others two states, California and New York, that voted against Trump in 2016 and against him again in 2020.
The Court’s seven-page opinion described the case, contrary to the district court’s 85-page opinion, as “riddled with contingencies and speculation that impede judicial review.” The Court noted the administrative difficulties in determining the number of illegal aliens among the immigrant population in respective states. “We simply do not know,” the Court wrote, “whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment.”
Three liberal justices dissented from the decision in a forceful, 21-page dissenting opinion written by Breyer and joined by Sotomayor and Kagan. Breyer mocked the majority’s seeming insouciance toward what he called the administration’s “illegal” policy. “Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal,” Breyer wrote, “this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.”
Breyer acknowledged that the few cases challenging congressional apportionment in the past came after presidents had presented their tabulations to the House of Representatives for approval. But he argued that leaving the present case unresolved and waiting to adjudicate claims later “risks needless and costly delays in apportionment.”
The Court’s unsigned opinion expressly left the constitutional and statutory issues unresolved, but Breyer declared unambiguously that on the merits he agreed with the three district courts that had ruled the president’s memorandum unlawful. “Our tools of statutory construction all point to ‘usual residence’ as the primary touchstone for enumeration in the decennial census,” Breyer wrote. “The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside.”
In contrast to the Court’s silence in regard to the congressional action in 1929, Breyer noted that some members of Congress considered offering proposals to exclude aliens from the population count but none was ever adopted. “Time and again throughout the debate over what became the 1929 Act,” Breyer recounted, “members considered (and rejected) proposals that would have excluded aliens from the apportionment base.”
Breyer acknowledged that the government had cited some historical evidence to suggest “some ambiguity” about the Framers’ intentions in regard to counting aliens as part of the census required under the Constitution. “[T]he Framers’ intent is not our focus,” he responded. “Instead, the question is the meaning of the statute enacted in 1929.” Apart from that evidence, Breyer contended, “the Government offers little more than its assertion that excluding aliens without lawful status makes good policy sense. . . . Whatever the merits of that policy, it is not the approach to representative democracy that is set forth in the statute.”
Congress passed the 1929 law, Breyer recalled, in part to reduce political gamesmanship in regard to the population count used in apportioning seats in the House of Representatives. The conservative justices’ decision to let Trump’s policy stand based on manufactured doubts about deciding the case serves Trump’s goal, knowingly even if not intentionally, of disadvantaging Democratic-majority states. The Court ought not to have been so blind the political purpose behind Trump’s policy, given the obvious conflict with the Census Act’s specification on the issue.
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