Originally Published in the Los Angeles Times
The Times Editorial Board - December 1, 2020
Is it lawful for the Trump administration to defy history, and what appears to be black-letter law, and exclude people living in the country illegally from counts used to determine how many seats each state gets in the House of Representatives?
The Supreme Court on Monday juggled competing arguments over this question. While the justices seemed skeptical of the government’s position, some questions from the conservative justices who are in the majority suggest they may try to push off a decision until later, which may then make the matter moot. That would be unfortunate. The question needs an answer.
Since the first constitutionally mandated census in 1790, the federal government has sought to count everyone living in the U.S. on the appointed day — this decade, it was April 1, 2020 — regardless of citizenship status, with some reasonable carve-outs, such as foreign diplomats based here. Those numbers are then used to determine how many House seats each state will have for the next 10 years. (The numbers also affect federal formulas for $1.5 trillion in annual federal spending.)
Some modern conservatives have argued that the count also should exclude non-citizens, or at a minimum people who are living here without permission. While those arguments never gained much traction in the courts, Trump aggressively sought to make citizenship status an issue in the current census, first by adding a question on legal status (which the Supreme Court then disallowed).
Now he’s trying to cook the final numbers sent to the states under a July memo in which Trump asserted that, when it comes to congressional reapportionment, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act.”
If the president’s scheme is found to be lawful, California, Texas and Florida each might lose at least one seat (with more than 2 million migrants living in the state without authorization, California could lose up to three seats) to which they otherwise would be entitled, while Alabama, Minnesota and Ohio could each gain a seat.
The legal fight has been complicated by COVID-19-related delays in the count, and the time it’s taking the Census Bureau to process the data. Acting Solicitor Gen. Jeffrey B. Wall told the justices Monday that he thought it “very unlikely” the government would have enough data to exclude all immigrants living here illegally from the final count. He said the government may ultimately seek to exclude specific and more easily counted sub-groups — such as people in immigration detention — that he suggested would have a minimal impact on reapportionment. And it could be the numbers won’t get reported to the White House until after Trump is replaced on Jan. 20 by President-elect Joe Biden, who opposes the scheme.
While a change in administrations might make Trump’s effort moot, it would still be best for the Supreme Court to put this kind of chicanery to bed by affirming the Constitution’s clear language on the breadth of the census, and its use in reallocating House seats, and to reject Trump’s reasoning for ignoring historical precedent and clear constitutional language for political reasons.
Just because Trump and the immigration hard-liners who support him dislike the Constitution’s requirement that apportionment be based on an enumeration of “the whole number of persons in each State” doesn’t mean they get to redefine as they see fit. Members of the House do not make decisions affecting only citizens, or only those living in the U.S. with permission. They govern the country as a whole. It is no small matter, either, that the number of seats in Congress also determines how many electoral votes each state gets, which means that subtracting unauthorized residents from the “whole number of persons in each State” would affect the composition of the electoral college, as well.
As Barbara D. Underwood, who as New York state’s solicitor general argued on behalf of lower-level governments challenging the policy, told the court, Trump’s memo “pretends that if under the law a person should not be here, then the person is not here. The government can do many things to induce undocumented immigrants to leave, but it cannot declare them to be gone when, in fact, they’re here.”
In reality, the Republican president is trying to use the census to shift power from urban and immigrant-heavy regions to rural and traditionally more Republican areas. The president’s efforts here have little to do with political equity or the pursuit of accurate data, and everything to do with political gamesmanship. The court should stop it cold.