Donald Trump won’t be president in two months. An unconstitutional memorandum he passed last July could potentially affect both US politics and US elections for the next decade if the Supreme Court, due to hear the case on November 30th, allows that memo comes into force.
The constitution provides that “the representatives shall be divided among the various states according to their number, counting the total number of persons in each state except for the non-taxed Indians.” Still, Trump’s memo claims that “foreigners who are not are in legal immigrant status ”should not be counted when seats are allocated in the House of Representatives after the 2020 census.
In other words, the memo violates the clear text of the Constitution, as well as the federal laws regulating who should be included in the census.
An estimated 10.6 million undocumented immigrants are in the United States and nearly 20 percent are in California. So the nation’s largest blue state could lose up to three seats in the House of Representatives if Trump successfully implements his plans to cut these immigrants out of the split number. (The red state of Texas is likely to be hit hard, too – but the Texas Republican legislature will likely draw cards with Gerrymander cards that would impose the cost of losing seats on the House of Representatives on the Democrats. California is setting up a bipartisan redistribution commission, to draw lines of legislation.)
The courts have so far responded to Trump’s memo with considerable skepticism. Four different bodies with three judges have all unanimously come to the conclusion that Trump must not exclude undocumented immigrants from the count. That means a dozen judges, some appointed by Democrats and some by Republicans, believe that Trump’s memo is unconstitutional.
The legal issues in these cases are “not particularly narrow or complicated,” according to a lower court that rejected Trump’s arguments.
Still, the Supreme Court will hear oral arguments in the Trump v. New York case, one of four cases in which Trump’s unconstitutional memo is challenged.
The mere fact that the Court will hear this case does not necessarily mean that the majority of judges tend to side with the President of the Lame Duck. The judges can usually choose which cases they want to hear – usually four judges must agree to hear a case before it can be heard in the Supreme Court. However, federal law sometimes requires the court to rule on cases that concern time-sensitive, election-related issues, such as: B. How many seats each state will have in the next House of Representatives.
New York is one of those rare cases that comes under the overriding jurisdiction of the Court of Justice. The judges cannot simply ignore this case, even if they agree with the lower courts ruled against Trump.
So it is possible, perhaps even likely, that the Supreme Court will approve the unanimous consensus of the lower court judges who reviewed and rejected Trump’s memo. Still, with six conservatives at court – including three Trump appointed – there is no guarantee that Trump will lose.
Trump claims he can decide who counts for the split
Trump’s memo claims that the constitutional provisions regulating who should be counted for apportionment should not be read verbatim. “Although the Constitution mandates that” persons in any state except non-taxed Indians “must be enumerated in the census,” Trump says in his memo, “it was never understood that this requirement includes anyone who is physically present in the apportionment base is the borders of a state at the time of the census. “
It is not wrong that some foreigners who might be physically present in the United States during a census are not counted. Tourists, foreign diplomats, international business people, and other non-nationals visiting the United States temporarily are not normally included in the census. “The term” persons in each state “”, according to Trump’s memo, “was interpreted to mean that only the” residents “of each state should be included.”
This general premise that only “residents” of a state and not temporary foreign visitors should be included in the census is fairly undisputed. But Trump then claims power to decide who counts as “residents” for census purposes. “In order to determine which individuals should be considered ‘residents’ for the purpose of partitioning, a judgment must be made,” argues his memo.
And Trump, according to his lawyers, “effectively exercised that ruling when he decided to expel illegal aliens” as much as possible and in accordance with the executive’s discretion.
Trump’s lawyers, however, do not cite any actual law that gives Trump the authority to determine who is considered a “resident” of a state, and the federal laws that govern the census suggest that Trump does not have that authority. These laws require the Secretary of Commerce to report “total population by state” to the President once the census is complete, and that the President “send Congress a statement of the total number of people in each state” once he has reviewed the census. These references to “total population” and “total number of people” suggest that the president may not choose who will be counted.
As the referring court, which ruled against Trump in New York, noted, “It does not follow that illegal aliens – a category defined by legal status rather than residence – can be excluded from the census by alleging becomes, they are not “residents” of a state. “On the contrary,” the court stated, quoting from Merriam-Webster’s dictionary, “the common definition of the term” inhabitant “is” one that is regular, routine or for one a certain period of time occupies a certain place “
Many undocumented immigrants live in one state “for many years or even decades,” the court continued. These immigrants are just as “residents” of these states as all other residents. It is worth noting that two of the judges who endorsed this opinion were appointed by Republican President George W. Bush.
Trump cannot cite a legal authority that gives Trump the power to decide who is a “resident” of a state and points to a handful of other sources – some legal, others – that are at least in some way with the understanding of the outgoing president match who counts as “residents”.
For example, Trump’s letter cites a line from a 1992 Supreme Court ruling that deciding whether a particular person should be counted in the census “may involve an element of loyalty or permanent attachment to a place” – although this is unclear What this line quotes adds to Trump’s reasoning because an undocumented immigrant who has lived in the same state for a long time has a “permanent bond” with the place.
Similarly, Trump’s letter refers to international law, a treatise by the Swiss lawyer Emmerich de Vattel from 1758, in which the term “inhabitant” was defined to include “foreigners who are allowed to settle and stay in the country” .
American courts do not usually rely on 262 year old books by European authors to override the clear text of the Constitution. And there is also a glaring problem of relying on Vattel to determine who should be counted in the census. As one of the plaintiffs’ pleadings in the New York case explains, “Vattel defined” residents “as” distinguished from citizens “- that is, only non-citizens were classified as” residents “in his dictionary.”
So if the Supreme Court relied on Vattle’s definition of “resident” to determine who should be counted in the census, it would exclude US citizens from the census. The division of the house would be determined solely on the basis of the number of non-nationals legally resident in each state.
New York is an early test of the new Supreme Court’s commitment to the rule of law
The Supreme Court hears many difficult cases, but Trump v New York isn’t one of them. Trump’s memo contradicts a clear constitutional text. Trump’s letter offers little support for his arguments. Any judge reviewing Trump’s memo has ruled against it. And it is not even clear that the judges would have agreed to hear this case at all had it not been for the overriding jurisdiction of the Court.
But the case is also being heard by a deeply conservative court, which appears to be encouraged by the confirmation of the new judiciary, Amy Coney Barrett, to move the law dramatically to the right – especially in cases that affect elections.
In other words, New York will be an early test of how encouraged the new majority in the court has become. If the judges in New York support Trump in spite of the clear contrary constitutional text, then that is a worrying sign of the future of the rule of law in the United States.
In any event, the Court is likely to resolve this case very quickly. The law requires Trump to inform Congress about how the seats in the House will be distributed among states by January 10, 2021.
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