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Symposium: Trump’s census policy is both fundamentally fair and legally sound

This article is part of a symposium previewing Trump v. New York.

Hans von Spakovsky is a senior legal fellow at the Institute for Constitutional Government of the Heritage Foundation and the manager of Heritage’s Election Law Reform Initiative.

In Trump v. New York, the Supreme Court should be looking only at the constitutional and statutory issues: whether President Donald Trump was within his legal authority to direct that noncitizens in the country illegally be excluded from the population used for congressional apportionment. The policy issue is very important, of course. What the president did was fundamentally fair. And, under the Supreme Court’s precedent in Franklin v. Massachusetts, Trump was also within his legal authority to do so.

First on the policy issue and the question of fairness. For the past four years, the political arena has been filled with claims of Russian “interference” in our elections. Special Counsel Robert Mueller actually indicted a number of Russians for involvement in those efforts. If you were to ask members of the public if they believe that any one of the indicted Russians should be allowed to make a political donation to a federal candidate — be it Trump or someone running for Congress – if he were here illegally, I have no doubt they would uniformly say “no.”

If you then ask whether that same Russian should be allowed to be a candidate for Congress, you would receive the same adamant answer. And if you ask whether that Russian should be able to vote in federal elections, including congressional elections, the answer would still be a resounding “no.”

So why would the state of New York or any of the other Democratic-controlled state and local governments who are challenging the president’s action argue that Russians (and other noncitizens) who are not here legally should be included in the population used to apportion the political power of the House of Representatives? Only one reason: to distort the House and give states with large illegal immigrant populations more members of Congress (and more political influence) than they are entitled to receive according to their citizen population. This gives states an incentive to obstruct federal immigration law in order to boost the number of illegal immigrants residing in those states.

The three-judge district court that granted summary judgment to New York and issued a permanent injunction prohibiting the Commerce Department, the Census Bureau and all other government agencies from implementing Trump’s July 21, 2020 memorandum got it legally wrong, too, and misapplied the Franklin decision.

Under Section 2 of the 14th Amendment, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” The secretary of commerce is given the statutory authority under 13 U.S.C. § 141(a) to conduct the census “in such format and content as he may determine” and then send a report to the president.

Pursuant to 2 U.S.C. § 2a(a), the president is directed to send Congress “a statement showing the whole number of persons in each State” as determined by the decennial census and “the number of Representatives to which each state would be entitled … by the method known as the method of equal proportions.” Trump’s July 21 memorandum specifically instructed the secretary to exclude noncitizens who are in the country illegally from the base population number for apportionment purposes “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

As the Supreme Court said in Franklin, the president’s role in applying the “equal proportions” formula to the base population is ministerial. However, his role in determining what the base population is – the number to which the formula will be applied – is not ministerial. In fact, the court noted that 2 U.S.C. § 2a(a) does “not curtail the President’s authority to direct the Secretary in making policy judgments” regarding the conduct of the census.

As the Justice Department persuasively argues in its brief, one such “judgment” is “whether a person should be deemed an ‘inhabitant’ or ‘usual resident’ of a State, which is ‘the gloss’ that has historically been given to the constitutional and statutory phrase ‘persons’ in each State.” Furthermore, the court stated in Franklin that the key phrase of “persons in each state” used in both the Constitution and the statute “mean[s] more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place.”

Noncitizens who are here illegally – like tourists or other temporary visitors – have no element of political allegiance to any state or the federal government. They cannot be drafted for jury duty or for military service (if we still had a draft), because they owe their political allegiance to the native country of which they are a citizen. Moreover, they have no “enduring tie” to any state since they are illegally present in the country. They can be picked up, detained at any time by federal authorities, and removed from the United States.

Thus, excluding individuals who have no allegiance or enduring tie to a state is well within the precedent set by the court in Franklin – and well within the precedent set by prior censuses that have always excluded certain individuals. It is uncontested by the challengers in this case, for example, that the “Residence Criteria” established by the Census Bureau in 2018 for the 2020 Census – following the same rules used in prior censuses – excludes noncitizens who were lawfully “visiting the United States, such as on a vacation or business trip.” If we can exclude noncitizens who are here temporarily and legally from the census count, why can we not exclude noncitizens who are also here illegally and temporarily – that is, until they are caught and removed?

The district court’s analysis fails on all counts to correctly apply the statute and the Franklin precedent. The court held, for example, that the president’s memorandum would somehow “chill” participation in the census. It did that without evidence to support that conclusion; however, even if it were true, it would be irrelevant. If the president has the statutory authority to determine the population used for apportionment purposes, then any chilling effect cannot be used to prevent him from exercising his statutory authority.

The court also held that the president’s role in making this determination is, in fact, ministerial, and that he cannot direct the secretary to report a different population for apportionment purposes from the total population determined by the census. But that is directly contrary to the Supreme Court’s decision in Franklin that the president can make policy judgments on what population will be used for the apportionment formula. It also conveniently ignores the fact that the Census Bureau has long excluded other “whole persons” from the count, such as noncitizens who are in the country as tourists or for business purposes.

Including noncitizens living here illegally in the population used for apportionment makes no sense in a representative, democratic republic, any more than it would make sense to allow them to vote, make political donations or run for office. And as the Franklin case shows, and as pointed out in a persuasive amicus brief filed 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 authority to exclude these noncitizens. Eastman and Baker note that including noncitizens who cannot legally establish residence would be inconsistent with the Constitution since they are not “inhabitants,” the “term used in the Constitutional Convention, The Federalist Papers, and Census instructions for much of our history to identify those to be counted.” (Baker elaborates on that argument for SCOTUSblog in a previous entry in this symposium.)

The Supreme Court should overturn the lower court opinion, dissolve the injunction and not allow the votes of citizens to be diluted, and the distribution of the political power of the states to be unfairly distorted, by an apportionment calculation that includes noncitizens without legal status and without allegiance to our nation.

Recommended Citation: Hans von Spakovsky, Symposium: Trump’s census policy is both fundamentally fair and legally sound, SCOTUSblog (Nov. 25, 2020, 12:45 PM),