Originally Published in Slate
Mark Joseph Stern - November 30, 2020
Three weeks before he leaves office, Donald Trump plans to punish states with large immigrant communities by denying them fair representation in Congress. Although this plot violates a bedrock constitutional principle, the Supreme Court may not be willing to nip it in the bud. At oral arguments on Monday, a majority of justices seemed to acknowledge that Trump’s scheme violates the law. But several fretted that they might not have authority to block his policy before it inflicts real damage. If the court ducks this issue now, it could create a huge mess that consumes the final days of Trump’s presidency—and the early days of Joe Biden’s. The incoming president probably doesn’t want to spend his first hours in the White House combating Trump’s sabotage of the census, but SCOTUS may leave him no other choice.
Trump’s administration has sought to subvert the census ever since he entered office. This particular plot targets one specific function of the census: the apportionment of congressional districts. Every 10 years, the Constitution directs Congress to “apportion” (divide up) seats in the House of Representatives between the states “according to their respective numbers, counting the whole number of persons in each state.” Under federal law, the Commerce Department (which houses the Census Bureau) calculates this information, then transmits it to the House of Representatives. The House clerk certifies the data and sends it along to state governors. Due to population changes, states in the Northeast and Midwest are set to lose seats, while those in the South and West are set to gain them.
In July, Trump upended the usual apportionment process in an alarming memo. The president declared that undocumented immigrants are not “inhabitants” of the United States because they are not authorized to live here. By extension, he claimed, these immigrants should not be included in the apportionment count. Trump then directed Secretary of Commerce Wilbur Ross to exclude undocumented people from the apportionment count he is scheduled to send to Congress in December or January. If executed, this plan will strip at least one seat—and one vote in the Electoral College—from California and Texas.
A coalition of states led by New York, as well as advocacy groups led by the ACLU, sued to halt this policy. They have a strong argument: Every shred of historical evidence demonstrates that the Constitution, as originally understood, requires apportionment based on total population—including immigrants, whether documented or not. While the Constitution initially counted enslaved people as three-fifths of a person, the 14th Amendment repealed this rule, requiring the government to count all inhabitants equally. By asserting that certain immigrants are not “persons” who reside in the United States, Trump is creating a modern three-fifths clause.
Justice Stephen Breyer came out swinging against this perverse endeavor. “About 40 briefs,” Breyer told acting Solicitor General Jeff Wall, show “that the history, the language, the consequences, the purposes, and a bunch of other things argue against you.” The Constitution says “persons,” Breyer reminded Wall; the government has “always counted people who were here and not naturalized, and this has never happened before that you excluded illegal aliens, and it has a lot of negative effects on the states.” An exasperated Breyer asked Wall, perhaps rhetorically: “I mean, what do you want to say? They’re persons, aren’t they?”
Remarkably, Justice Amy Coney Barrett appeared to agree. “As Justice Breyer said,” Barrett told Wall, “a lot of the historical evidence and long-standing practice really cuts against your position. And, you know, there’s evidence that in the founding era, an inhabitant was a dweller who lives or resides in a place.” Wall retorted that “there’s nothing usual or settled about your residence if your presence is violating federal law and the sovereign hasn’t agreed to let you stay.” But Barrett got the upper hand: “If an undocumented person has been in the country for, say, 20 years, you know, even if illegally,” wouldn’t that person “have a settled residence here?” Wall raised the example of “embassy personnel” who live in another country for long periods; Barrett sounded unconvinced. “You concede,” she asked, “that illegal aliens have never been excluded as a category from the census?” Wall hesitantly said yes.
Justice Brett Kavanaugh admitted the weakness of Trump’s claims too, stating that there are “forceful” arguments against the “categorical exclusion of all unlawful noncitizens.” But it shouldn’t be too surprising that Breyer, Barrett, and Kavanaugh appear to agree on the unconstitutionality of Trump’s memo: The law here is unambiguous. As the ACLU’s Dale Ho explained during his arguments on Monday, this nativist policy flouts constitutional text andhistorical practice going back to the beginning of the republic. Ho even used an 1828 dictionary to illustrate the founding-era meaning of “residence”—the same dictionary that the Trump administration cited to bolster its own argument. Any attempt to defend Trump’s memo inevitably deflates when exposed to reality. That’s why three district courts found the memo unlawful.