September 24th 2020
The latest development in Trump's battle to limit the political influence of illegal aliens occurred on Sept 10, in a federal court in New York. The judges declared illegal his memorandum directing the Census Bureau to provide him with information necessary to exclude illegals from being counted for the purpose of re-allocating congressional seats after the 2020 Census.
If the opinion stands, then states such as California and New York, which encourage illegal immigration and sabotage federal enforcement efforts, will be rewarded with additional representatives at the expense of other parts of the nation.
Whether the opinion will stand is up for grabs. It was immediately appealed to the Supreme Court by the administration, with a request for expedited proceedings to settle the matter before the end of this year. For the Court to fail to address the matter would be unthinkable. However, it could rule that the plaintiff states did not have standing to sue, which would let the administration go forward, subject to litigation over the result in 2021.
The basic issues revolve around complicated questions of constitutional interpretetion, and have been addressed in prior AT articles:
Roll Tide: Alabama versus the Census
Trump and Barr counter-punch on the Census and illegal aliens
Illegal aliens and the Census: Trump drops the other shoe
The New York opinion avoids discussing these constitutional issues. It focuses on the terms of the Census statutes and then relies on obscure legislative statements and later administrative pronouncements for the proposition (true) that illegal aliens were included in the enumeration in past censuses. As a result, it decrees: "The merits of the parties' dispute are not particularly close or complicated" (p.6).
This view that the merits are simple is astonishing. To get to its result, the court had to ignore three principles basic to prudent jurisprudence:
First, if the terms of a statute are cribbed from the Constitution, one cannot ignore 150 years of constitutional history in interpreting the statute.
Second, casual decades-old comments by legislators or administrators talking about a question that was not important at the moment cannot bind responsible officials later in time who are trying to deal with a problem that has become acute.
Third, a principle of statutory interpretation is the Rule of Absurdity: if the literal language of a law leads to an absurd result, a judge can adopt an interpretation that avoids it. Within the legal academy, a dispute exists over whether a judge is permitted to wiggle out of the plain requirements of the text, but that is not a problem in the Census case. Here, the words of the law (and the underlying Constitution) do not compel absurdity; it is the judges who, by ignoring the constitutional history, are insisting on it.
The absurdity is obvious. Under the New York opinion, a 10-million-man Canadian army that occupied Montana, with intent to remain, would be entitled to 13 seats in the U.S. Congress. (Roughly, a state gets a seat for every 750,000 inhabitants.) In the alternative, Montana could invite 10 million Canadians to ignore U.S. immigration law and move in and then claim an extra 13 seats. Other states could then retaliate with their own open borders policies ("I'll see your 10 million Canadians and raise you 5 million Venezuelans").
The Montana example seems less ridiculous if one replaces "Montana" with "California." No one knows how many aliens are in the U.S. illegally, but a common estimate is about 10.5 million, with 3 million of them in California (worth four seats) and 1.6 million in Texas (two seats). But it could be many more. The common estimate is based on surveys, and an alternative approach based on demographic modeling put the number as between 16.5 million and 29.5 million, with a point estimate of 22 million.
For good measure, the New York court enjoined the secretary of commerce from providing the president with any information he could use to determine the numbers and distribution of illegal aliens and has not, so far, stayed the implementation of this order. The Census deadlines are tight, so if the injunction remains in effect through the end of the year, it will be impossible to change the enumeration.
The administration has also asked the Supreme Court to issue a stay, and, clearly, the injunction should not be allowed to stand.
Beyond that, the best result might well be a SCOTUS decision that the matter is not yet ripe for decision and that the administration should proceed, with judicial review occurring next year, when the matter is finalized. Many states and groups have a stake here, and slam-bang litigation under tight deadlines is not a good idea.
If the Court does get to the merits, either now or later - I agree with the New York judges that the merits are not close, but on the other side. Of course illegal aliens should not be counted in allocating congressional seats, or in allocating state legislative seats. Most all citizens would agree, as noted by legal guru Manhattan Contrarian in discussing Trump's directive:
Cue the usual outrage on the left. ... I suspect your reaction might be something different, like: What? Are you telling me that up until now they have been counting illegal aliens in the census for purposes of apportioning representation in Congress? How can that possibly be right? Do illegal aliens get representation in Congress even though they not only cannot vote, but also are not even here legally and are subject to deportation at any time?
It is time to apply the Rule of Absurdity. If an outcome is too crazy to contemplate seriously, then don't.
In the words of Justice Robert Jackson:
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
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