Supreme Court to consider unauthorized resident issue


On Monday November 30 the Supreme Court hears the arguments over whether unauthorized persons can be excluded from Congressional apportionment. This long posting will brief you on the issue.

Before delving into the current issue, I note that the Trump Administration has been trying from the start to reshape elections through innovative use of census data. I posted here about an attempt to apportion Congressional seats by excluding all non-citizens, authorized and unauthorized.

What is at stake.

The way in which the 435 Congressional seats are divided up among the states when unauthorized persons are excluded from the apportionment process.

Why it matters.

I posted on July 21 that Brookings demographer William Frey opined that only states where the undocumented population is so proportionally large that they would lose seats are California (lose 2 seats of 53), Texas (lose 1 seat of 36) and Illinois (lose 1 of 18). Florida would come close to losing 1 of 27 seats.

What the Trump Memorandum says, plus to relevant passages in law.

Trump Administration’s action (from a suit by New York State): On July 21, 2020, President Trump issued a “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” The Memorandum announces a “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” It directs the Secretary of Commerce to provide the President with information to carry out this policy. And it declares the President’s intent to make a determination of the “whole number of persons in each State” that will in fact exclude the undocumented immigrants he has targeted throughout his administration.”

I posted here about the statistical methods to be used to estimate the unauthorized population.

Text of Article XIV § 2 of the Constitution: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

4. 13 U.S.C. 141(a)-(b) provides: (a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary. (b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the
President of the United States.

What the opponents of the Memorandum say.
New York State’s brief July 24, 2020 : The President’s new policy and any actions Defendants take to implement it unequivocally violate the Fourteenth Amendment. The constitutional mandate to base apportionment on “the whole number of persons in each State” could hardly be clearer, and the Supreme Court has long recognized that undocumented immigrants are “persons” under the Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent Defendants from taking steps to carry out its unlawful policy.”

How the Justice Dept is defending the Memorandum.
Quoting from its brief: “It has long been understood that, under the governing legal provisions, the phrase “persons in each State” means “inhabitants” (or “usual residents”), and vests discretion in the Executive Branch to ascertain how that standard applies to particular categories of persons with debatable ties to a State.

The Justice Department says that “person” in state “has long been understood to cover only a State’s “‘inhabitant”…”As history, precedent, and structure indicate, the President need not treat all illegal aliens as “inhabitants” of the States and thereby allow their defiance of federal law to distort the allocation of the people’s Representatives. To the contrary, that an alien lacks permission to be in this country, and may be subject to removal, is relevant to whether he has sufficient ties to a State to rank among its “inhabitants.”

The DOJ goes on: “Founding-era dictionaries defined “inhabitant” as one who “dwells or resides permanently in a place…. This understanding of “inhabitants” is also consistent with Franklin’s observation that the concepts of “‘inhabitan[ce]’” or “‘usual reside[nce]’” can mean “more than mere physical presence” and can connote “some element of allegiance or enduring tie to a place.”

Most unauthorized persons have been living (or, have been “inhabitants”) in the U.S. for over 10 years.
Pew Research reports that “A rising share of unauthorized immigrants have lived in the U.S. for more than a decade. About two-thirds (66%) of unauthorized immigrant adults in 2017 had been in the U.S. more than 10 years, compared with 41% in 2007. A declining share of unauthorized immigrants have lived in the U.S. for five years or less – 20% of adults in 2017, compared with 30% in 2007. In 2017, unauthorized immigrant adults had lived in the U.S. for a median of 15.1 years, meaning that half had been in the country at least that long.”

See this Washington Post article.

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