On Monday, the Supreme Court heard arguments on a question that goes to the heart of American democracy: should the government count all the inhabitants of the country, citizens or not, in the census totals that the House of Representatives uses to reassign its 435 seats among the states?
For over two centuries the answer has been “yes”. Article 1 of the Constitution and the 14th Amendment require that House seats be allocated on the basis of the “total number” of people in each state. This sentence has long been read to include all residents of the country, whether they are US citizens, foreigners admitted here on visas, or immigrants without any documentation. But President Trump signaled in a memorandum this summer that he intended to exclude unauthorized immigrants from the 2020 census totals that he hopes to send to the House next year for a reallocation.
Federal courts have ruled in three separate lawsuits that Mr. Trump does not have that authority, saying in one case the issue is not even close. But the Supreme Court will have the last word. Here’s a look at some of the basics of the problem:
What is at stake in this case?
First and foremost, the attribution of political power. There is no precise count of unauthorized immigrants. Mr Trump ordered the Census Bureau to provide an estimate, but many experts put the figure at around 11 million.
Many are concentrated in states with large immigrant populations, like New York and Texas, and states like California and Florida, where undocumented immigrants are also in demand for farm work. Some of these states and a few others could lose seats in the House if unauthorized immigrants were excluded from census totals.
Conversely, some states with few unauthorized immigrants could reclaim these seats. Alabama, for example, looks set to lose one of its seven House seats with the next distribution change; state argues in separate lawsuit that undocumented immigrants illegally deprive its citizens of equitable representation. Many experts believe that restricting the count to citizens would tend to benefit rural and Republican states to the detriment of those that are urban and democratic. But the Republican Party’s gains would likely be minimal, most say, given that large Republican states like Texas would be among those that could be affected by the change.
The Justice Department maintains that federal law gives the president discretion to make political judgments on whom the census counts. This discretion includes defining the definition of an “inhabitant” or “habitual resident” of the United States, in two terms which have historically been used to describe those eligible to be enumerated in a census.
Lawyers for the president say federal law gives “virtually unlimited discretion” to the Department of Commerce – the federal agency that oversees the Census Bureau – to decide what data is used to count individual state residents
Opponents of the president’s plan say 230 years of history are on their side. Non-citizens have been counted in every census – and used in every new division of the House – since the very first census taken in 1790. At the start of the country’s history, a significant portion of the population had emigrated from other countries, and for many decades thereafter, some states actively recruited foreigners to provide manpower and strengthen political representation. The drafters of the Constitution chose to exclude certain people from the counting – “Indians not taxed” and, more notoriously, the decision to count a enslaved person as three-fifths of a no one – but left the non-citizens untouched. The drafters of the 14th Amendment debated whether to count all immigrants for apportionment and ultimately chose to do so.
Opponents also claim that the Constitution explicitly requires that the decennial census be used for redistribution, and that Mr. Trump has no authority to deduct unauthorized immigrants from that census before sending population totals to the House. .
Three courts – in New York City, Maryland and California – have ruled against the White House on various grounds and, in some cases, have banned the Commerce Department from sending a tally of unauthorized immigrants to the White House. The California court ruled that excluding non-citizens violates both federal and the Constitution.
In New York, a a panel of three judges, two appointed by President George W. Bush and one by President Barack Obama, unanimously declared that “the merits of the dispute between the parties are not particularly close or complicated”. The panel said federal required the to produce a single set of population counts for redistribution, rendering Mr. Trump’s plan for a separate estimate of unauthorized immigrants moot. The judges also said that “as long as they reside in the United States, illegal aliens are referred to as ‘persons’ in a ‘state’ as Congress has used these words.
For this reason, the judges said, there was no need to consider whether the president’s plan also violated the Constitution.
It would be extremely difficult, if only because many of them do their best to avoid being seen for fear of being deported. The Trump administration ordered the Census Bureau to add a citizenship question to the 2020 census in an attempt to arrive at a tally, but the Supreme Court ruled in 2019 that the Commerce Department had not provided a plausible explanation of why the question was needed.
By order of the president, a Census Bureau task force is working to provide a tally anyway, primarily by examining federal and state records that conclusively show who a citizen is – and by implication, who doesn’t. is not. A handful of documents, such as compilations of people marked for deportation, identify people who are in the county illegally, but those numbers represent only a small fraction of the entire unauthorized immigrant population.
The office seems unlikely to produce an estimate of unauthorized immigrants before the December 31 legal deadline for sending population totals to the White House. Indeed, Census Bureau officials told the Commerce Department this month that the 2020 census itself could not be completed until after Mr. Trump left on January 20. Trump in early or mid-January.