The three-judge district court granted summary judgment to New York in this case. It issued a permanent injunction. The injunction prohibits the Commerce Department, the Census Bureau, and all other government agencies from implementing Trump’s July 21, 2020 memorandum.
The three-judge panel got it legally wrong. It misapplied the Franklin decision.
Under Section 2 of the 14th Amendment, it says, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” The secretary of commerce is given the statutory authority under 13 U.S.C. § 141(a) to conduct the census “in such format and content as he may determine” and then send a report to the president.
Pursuant to 2 U.S.C. § 2a(a), the president is directed to send Congress “a statement showing the whole number of persons in each State” as determined by the decennial census and “the number of Representatives to which each state would be entitled … by the method known as the method of equal proportions.”
Trump’s July 21 memorandum specifically instructed the secretary to exclude noncitizens who are in the country illegally from the base population number for apportionment purposes “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
The Supreme Court said in Franklin, the president’s role in applying the “equal proportions” formula to the base population is ministerial. However, his role in determining what the base population is the number to which the formula will be applied; that is not ministerial. The court noted that 2 U.S.C. § 2a(a) does “not curtail the President’s authority to direct the Secretary in making policy judgments” regarding the conduct of the census.
The Justice Department argues in its brief, one such “judgment” is “whether a person should be deemed an ‘inhabitant’ or ‘usual resident’ of a State, which is ‘the gloss’ that has historically been given to the constitutional and statutory phrase ‘persons’ in each State.”
Furthermore, the court stated in Franklin that the key phrase of “persons in each state” used in both the Constitution and the statute “mean[s] more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place.”
Non-citizens, who are here illegally, like tourists or other temporary visitors, have no element of political allegiance to any state or the federal government. They cannot be drafted for jury duty or for military service, because they owe their political allegiance to the native country of which they are a citizen.
They have no “enduring tie” to any state since they are illegally present in the country. They can be picked up, detained at any time by federal authorities, and removed from the United States.
Excluding individuals who have no allegiance or enduring tie to a state is well within the precedent set by the court in Franklin. It is well within the precedent set by prior censuses. They have always excluded certain individuals.
It is uncontested by the challengers in this case that the “Residence Criteria” established by the Census Bureau in 2018 for the 2020 Census is following the same rules used in prior censuses. It excludes noncitizens who were lawfully “visiting the United States, such as on a vacation or business trip.”
If we can exclude noncitizens who are here temporarily and legally from the census count, why can we not exclude noncitizens who are also here illegally and temporarily? Why can we not exclude them from the census… until they are caught and removed?
The district court’s analysis fails to correctly apply the statute and the Franklin precedent. The court held that the president’s memorandum would somehow “chill” participation in the census. It did that without evidence to support that conclusion.
But as importantly, even if the assertion were true, it would be irrelevant. If the president has the statutory authority to determine the population used for apportionment purposes, then any chilling effect cannot be used to prevent him from exercising his statutory authority.
The court also held the president’s role in making this determination is ministerial. He cannot direct the secretary to report a different population for apportionment purposes from the total population determined by the census. The problem with the position is that it is directly contrary to the Supreme Court’s decision in Franklin.
In Franklin, the president can make policy judgments on what population will be used for the apportionment formula. It also conveniently ignores the fact that the Census Bureau has long excluded other “whole persons” from the count. Those excluded populations include noncitizens who are in the country as tourists or for business purposes.
Including noncitizens living here illegally in the population used for apportionment makes no sense. We are a representative, democratic republic. It makes no more sense to count then for apportionment than it makes sense to allow them to vote, make political donations or run for office. The original meaning and history of the apportionment clause in the Constitution shows us the president is well within his authority to exclude these noncitizens.
Including noncitizens who cannot legally establish residence would be inconsistent with the Constitution. They are not “inhabitants,” the “term used in the Constitutional Convention, The Federalist Papers, and Census instructions for much of our history to identify those to be counted.”
The Supreme Court should overturn the lower court opinion. It should dissolve the injunction and not allow the votes of citizens to be diluted. The distribution of the political power of the states should not be to be unfairly distorted, by an apportionment calculation that includes noncitizens without legal status and without allegiance to our nation.
Why do we have to continuously deal with matters that are clearly attacks on the values and principles of America? There are issues of fairness, this isn’t one. This case should have been laughed out of court. This case is the reason the system of “stare decisis” the legal profession uses needs to be jettisoned.