The Trump administration had long tried to use this year’s census as a means of furthering its anti-immigrant philosophy. For example, it has already lost a fight to put a citizenship question in the survey. Now the administration has lost a court case to exclude undocumented immigrants from the decennial count. Via NPR: Court Blocks Trump’s Attempt To Change Who Counts For Allocating House Seats.
A special three-judge court in New York on Thursday blocked the Trump administration’s efforts to make an unprecedented change to who is included in the census numbers that determine each state’s share of seats in Congress.
The president, the court concluded, cannot leave unauthorized immigrants out of that specific count.
The decision comes after the July release of a memorandum by President Trump that directs Commerce Secretary Wilbur Ross, who oversees the U.S. Census Bureau, to provide Trump with information needed to exclude immigrants who are living in the United States without authorization from the apportionment count.
The panel of judges — including U.S. Circuit Judge Richard Wesley, Circuit Judge Peter Hall and District Judge Jesse Furman — noted the president does have some direction over the census and how the results of the count are used for reapportionment. But that authority, which is delegated from Congress, is limited.
The Constitution is pretty straightforward. From Article I, Section 2:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
The Constitution of the United States orders a count of “free persons” and excludes only certain native Americans, and includes the infamous three-fifths clause (which is now dead letter due to amendment).
There is no provision to differentiate between citizens and non-citizens, let alone between immigrants of differing legal status.
From a plain letter point of view, this is pretty straightforward.
The law authorizing this process is even clearer (back to the NPR story):
A “tabulation of total population” is what the commerce secretary is directed to report to the president from the once-a-decade census, under Title 13 of the U.S. Code. According to Title 2, the president, in turn, is supposed to hand off to Congress “a statement showing the whole number of persons in each State.”
It is hard to take an originalist view of this or a plain letter view and not see that the Trump administration is simply incorrect. The clear goal is the count everybody.
Interestingly, there are red states who are not on Trump’s side of this fight:
Fearing the loss of a House seat after the 2020 census, the state of Alabama is leading an ongoing case that was filed in 2018 to try to force the Census Bureau not to include unauthorized immigrants in the apportionment count.
Of course, this is not the end of this:
The ruling in New York may be appealed directly to the U.S. Supreme Court. Federal law allows decisions by a three-judge court — which are convened for lawsuits challenging the constitutionality of how congressional seats are reapportioned among the states — to skip review by an appeals court.
Quite frankly, I don’t see how this isn’t a 9-0 ruling against the administration.
And this is not the administration’s only attempt to affect the process:
In addition to this legal fight over who counts for reapportioning House seats, the bureau is embroiled in lawsuits over the Trump administration’s directive to shorten the 2020 census schedule — already disrupted by the coronavirus pandemic — to make sure the president receives the apportionment count by Dec. 31.
