The Volokh Conspiracy
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Earlier this week, University of Texas law professor Sanford Levinson and I filed an amicus brief in Trump v. New York, an important case currently before the Supreme Court. The case involves a lawsuit by New York and other state and local governments to the Trump administration's plan to exclude undocumented immigrants from the population counts that determine the allocation of seats in the House of Representatives. As we explain in the brief, the administration's position goes against the text and original meaning of the Constitution—both that of the original Apportionment Clause in Article I, Section 2 and the modified version enacted in Section 2 of the Fourteenth Amendment.
The brief expands on the points made in much shorter form in my recent Los Angeles Times op ed about the case. Here is an excerpt from the brief, summarizing key aspects of our argument:
The Constitution requires the federal government to apportion congressional seats "among the several States" based on the number of "Persons" in each State. U.S. Const. art. I, § 2; see id. amend. XIV. In an unprecedented decision, the President has made it "the policy of the United States to exclude from the apportionment base aliens who are not in lawful immigration status…." Because that policy flouts the Constitution's text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….
[E]xcluding undocumented immigrants is at odds with the Apportionment Clause's command that the government base congressional apportionment on the number of "Persons" living in each State. U.S. Const. art. I, § 2. "Persons" is a broad term and was equally broad at the founding. Then, as now, it referred to all human beings.
While that plain language is broad enough on its face to include undocumented immigrants living in a State, surrounding words and text from elsewhere in the Constitution reinforce that the Framers under-stood "Persons" as a broad and general term. For instance, the Apportionment Clause excludes "Indians not taxed" from the apportionment count. Because Indians were considered noncitizens with allegiance to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment base if "Persons" excluded foreigners or those with an allegiance to a sovereign other than the United States. The Constitution's use of "Citizens" in other provisions also underscores that the Framers distinguished between "Persons" and "Citizens"—a subset of "Persons…."
Appellants' contrary arguments cannot overcome these points. Appellants never address the ordinary meaning of "Persons" or the "Indians not taxed" provision, which would be superfluous if the Framers understood "Persons" to exclude foreigners. Instead, Appellants rely on the Apportionment Clause's language before it underwent stylistic changes in the Committee of Style. Because that language based apportionment on the number of "inhabitants," not "Persons," Appellants contend that the Framers intended to exclude foreigners. Appellants distort the meaning of "inhabitants." According to the founding-era sources Appellants cite, inhabitants are those people who intend to stay somewhere indefinitely. Undocumented immigrants, by and large, intend to stay in the United States indefinitely. Appellants' conjecture that some of these immigrants may be removed at some point cannot alter those persons' intention to remain here. That intention is what matters.
I should perhaps note that Sandy Levinson and I differ on a great many disputed constitutional issues—probably many more than we agree on. But we are in complete agreement on this one.
The brief goes into some detail on such issues as why undocumented immigrants are different from tourists and foreign diplomats (who historically have not been counted for apportionment), and why there is nothing unusual or intrinsically objectionable about including people in apportionment counts who did not have the right to vote. Indeed, for much of American history, a substantial majority of those counted for apportionment did not have that right.
Conservative columnist George Will devoted his Washington Post column today to our brief, and he endorses our position:
The Framers understood "persons" broadly, with the sole exception of Indians not taxed because they were considered noncitizens with an allegiance to distinct political communities: their tribes. The Framers would not have expressly excluded Indians not taxed if "persons" excluded foreigners or others with an allegiance to a government other than the U.S. government. So, the Framers clearly meant "persons" to include immigrants.
Most of the Framers, say Somin and Levinson, did not believe the federal government had the power to exclude immigrants — there was no significant federal immigration restriction until 1875 — so they could hardly have intended to exclude from apportionment "illegal" immigrants. Furthermore, the Framers expected that the congressional apportionment count would include the more than half the adult population that was not entitled to vote because of gender, or property requirements.
Conspiracy-minded readers (this is the Volokh Conspiracy, after all!) might wonder if I somehow orchestrated the Will column in advance, in order to promote our brief. The answer is no. Will found the brief and decided to write about it entirely on his own.
It is worth noting that the case could end up being dismissed as moot. The Census Bureau recently indicated that they are unlikely to be able to transmit to the White House the data the latter needs to exclude undocumented immigrants from apportionment counts before Trump leaves office on January 20. The incoming Biden administration will almost certainly reverse Trump's policy at that point, thus potentially rendering the case moot.
If the Supreme Court does decide the case, it is possible it will dismiss the plaintiff jurisdictions' case based on standing, without reaching the merits (though I believe such a ruling would be a serious mistake). Our brief does not address the standing issue.
Finally, I would like to thank Scott Eisman and his outstanding team at Freshfields Bruckhaus Deringer for their excellent pro bono work on drafting the brief with me on short notice.