Donald Trump will no longer be president in two months. But an unconstitutional memorandum he rendered last July could potentially shape both US policy and the US election for the next decade, if the Supreme Court, scheduled to hear the case on November 30, allows the note to be taken. effect.
The Constitution provides that “the representatives are distributed among the different States according to their respective number, count the total number of people in each state, excluding Indians not taxed. Nonetheless, Trump’s memo asserts that “foreigners who are not in legal immigration status” should not be counted when seats in the House of Representatives are allocated after the 2020 census.
The note, in other words, violates the unambiguous text of the Constitution, as well as the federal laws governing who should be included in census counts.
An estimated 10.6 million undocumented immigrants live in the United States, and nearly 20% live in California. So the country’s largest blue state could lose up to three House seats if Trump is successful in his plans to exclude these immigrants from the payout account. (The red state of Texas is likely to be hit hard as well – but Texas Republican Legislature is likely to draw gerrymandered maps that would impose the cost of any lost House seats on Democrats. California uses a bipartite redistribution commission draw legislative lines.)
Courts have so far approached Trump’s note with considerable skepticism. Four panels of three different judges all have unanimously concluded that Trump cannot exclude undocumented immigrants from the census. That means a dozen judges, some appointed by Democrats and others by Republicans, all agree Trump’s memo is unconstitutional.
The legal issues in these cases, in the words of a lower court that rejected Trump’s arguments, are “not particularly close or complicated. “
Nevertheless, the Supreme Court will hear the pleadings in Trump vs. New York, one of four cases challenging Trump’s unconstitutional note.
Just because the court will hear this case doesn’t necessarily mean that a majority of judges are inclined to side with the lame president. Judges can normally choose which cases they want to hear – typically four judges must agree to hear a case before it can be argued in the Supreme Court. But federal law sometimes requires the court to rule on cases that involve urgent election-related issues, such as the number of seats each state will have in the next House of Representatives.
New York is one of those rare cases falling within the imperative jurisdiction of the Court. The judges cannot simply ignore this case even if they agree with the lower courts that have ruled against Trump.
So it’s possible, perhaps even likely, that the Supreme Court would agree with the unanimous consensus of the lower court judges who reviewed Trump’s memo and rejected it. Still, with six Conservatives in court – including three appointed by Trump – there’s no guarantee Trump will lose.
Trump claims he decides who counts for distribution
Trump’s memo asserts that the provisions of the Constitution, which govern who is to be counted for the purposes of apportionment, should not be read literally. “Although the Constitution requires that ‘persons of every state, excluding non-taxed Indians’, be enumerated in the census,” said Trump in his note, “This requirement was never understood to include in the allocation base any person physically present within the borders of a state at the time of the census.”
He is not wrong that some foreign nationals, who may be physically present in the United States during a census, are not counted. Tourists, foreign diplomats, international businessmen and other non-citizens who visit the United States temporarily are generally not included in the census. “The term ‘people in every state,'” Trump’s note reasonably enough, “has been interpreted to mean that only the ‘inhabitants’ of each state should be included.”
This general premise – that only the “inhabitants” of a state, and not temporary foreign visitors, should be counted by the census – is fairly uncontroversial. But Trump then claims the power to decide who counts as “inhabitant” for census purposes. “In determining which people should be considered ‘inhabitants’ for the purposes of allocation, judgment must be exercised,” argues his note.
And Trump, according to his lawyers, “Has validly exercised this judgment by deciding to exclude foreigners in an irregular situation” as far as possible and in accordance with the discretionary power delegated to the executive power “.
But Trump’s lawyers do not cite an actual statute giving Trump the power to determine who counts as a state’s “inhabitant,” and federal census laws suggest Trump lacks that power. These laws provide that the Secretary of Commerce must report on “total population by states“To the president once the census has been taken by counting individuals, and they ask the president to” transmit to Congress a statement showing the whole number of people in each state“Once he has completed the census review. These references to “total population” and “total number of people” suggest that the president cannot choose who is counted.
Further, as a lower court that ruled against Trump New York “It does not follow that illegal aliens – a category defined by their legal status and not by residence – can be excluded” from the census by claiming that they are not “inhabitants” of a state. “On the contrary”, the court explained, while citing the Merriam-Webster dictionary, “the ordinary definition of the term ‘inhabitant’ is ‘one who occupies a particular place regularly, regularly or for a certain time’.
Many undocumented immigrants reside in a state for “many years, even decades,” the court continued. These immigrants are as much “inhabitants” of these states as any other resident. It should be noted that two of the judges who joined this opinion were appointed by Republican President George W. Bush.
Unable to cite a legal authority giving Trump the power to decide who is an “inhabitant” of a state, Trump’s brief points to a handful of other sources – some legal, others – that are at least some inconsistent with the outgoing president’s understanding of who counts as “inhabitant”.
Trump’s brief, for example, quotes a line from a 1992 Supreme Court ruling that said that determining whether a particular individual should be counted by the census may “include an element of allegiance or a lasting connection to a place– although it is not clear what quoting that line adds to Trump’s argument, as an undocumented immigrant who has long resided in the same state has a “lasting connection” to the place.
Likewise, Trump’s brief emphasizes The law of nations, a 1758 treatise by Swiss lawyer Emmerich de Vattel, which defines the term “inhabitant” to include “foreigners, who are permitted to settle and remain in the country”.
American courts generally do not rely on 262-year-old books by European authors to replace the unambiguous text of the Constitution. And there is also a glaring problem with relying on Vattel to determine who should be enumerated by the census. As one of the plaintiffs’ submissions in the New York this case explains: “Vattel defined the“ inhabitants ”as“ being distinguished from the citizens ”- that is to say in his lexicon, only non-citizens were classified as “inhabitants”. “
Thus, if the Supreme Court were to rely on Vattel’s definition of an “inhabitant” in determining who should be enumerated by the census, it would exclude American citizens County. The distribution of houses would be determined solely by the number of non-citizens legally residing in each state.
New York is a first test of the commitment of the new majority of the Supreme Court to the rule of law
The Supreme Court hears many difficult cases, but Trump vs. New York is not one of them. Trump’s memo is at odds with the clear constitutional text. Trump’s brief does little to support his arguments. Every judge who reviewed Trump’s memo has spoken against it. And it’s not even clear that the judges would have agreed to hear this case in the first place if it did not fall within the compulsory jurisdiction of the Court.
But the case is also being heard by a deeply conservative court that appears emboldened by new judge Amy Coney Barrett’s confirmation to shift the law dramatically to the right – especially in cases impacting elections.
New York, in other words, will be a first test of how emboldened the new majority of the court has become. If the judges support Trump New York, despite a clear constitutional text stating otherwise, it is a worrying sign about the future of the rule of law in the United States.
In any event, the Court is likely to decide this case very quickly. By law, Trump must notify Congress of House seat allocation among states before January 10, 2021.