Thoughts on Today's Supreme Court Oral Argument in Trump v. New York

Many of the justices seem intent on avoiding the substantive issues at stake in a case challenging the legality of Trump's plan to exclude undocumented immigrants from the apportionment count for congressional representation.


This morning, the Supreme Court heard oral argument in Trump v. New York, a case brought by 22 state and 15 local governments challenging the legality of Donald Trump's plan to exclude undocumented immigrants from the population counts that will determine the allocation of seats in the House of Representatives. Unfortunately for those who want to get a sense of where the Court stands on the substantive legal issues, the justices spent most of their time asking the lawyers for the parties about various ways in which they might be able to avoid deciding those issues. The Census Bureau recently indicated they may not be able to get the president the data on undocumented immigrant populations he would need to submit apportionment numbers that exclude them from the total population count, before his term runs out on January 20. Many of the justices seem interested in using this fact to find a way to dismiss the case for not being "ripe," or on some other procedural ground.

Chief Justice John Roberts' very first question for acting Solicitor General Jeffrey Wall set the tone for most of the rest of the argument:

Roberts: We expedited this case in light of the Dec. 31 deadline for the secretary [of Commerce] to transmit the Census to the President. Is that date still operative? Do you still need a decision by that date?

Wall answered that "the situation is fluid," and that it is still possible that the Census Bureau might get the president at least "some" of the data he needs before time runs out. That answer didn't seem to satisfy Roberts. It didn't satisfy several of the other justices, either. Justice Stephen Breyer, for example, followed up by asking whether "can you not provide us with any more information than what you provided in your answer to the Chief Justice, which is basically 'we are working  on it'?" Wall again hedged in response.

Various justices asked whether the Census Bureau would actually be able to do much more than give Trump numbers on the 60,000 or so undocumented immigrants currently in ICE detention, plus perhaps a few others (which would not be enough to meaningfully change the allocation of congressional seats between states). Wall continued to hedge.

Justice Elena Kagan made the excellent point that the federal government does in fact already have information on the number and residence of at least some substantial categories of undocumented immigrants, such as the roughly 700,000 DACA recipients, among others. Trump could potentially exclude these groups, even if he will not have the state-by-state figures for the full population of over 10 million undocumented immigrants. Once again, Wall hedged on the question, and even declined to commit on whether Trump plans to exclude the DACA recipients or not.

There was also some discussion of exactly what remedy a court could order, given precedent making it difficult to issue an injunction against the president. Plaintiffs' lawyers argued, persuasively in my view, that the injunction can simply bind the Secretary of Commerce (whose department includes the Census Bureau) to avoid including state-by-state numbers on undocumented immigrants in the report to be used for apportionment purposes, and the president would be expected to honor the injunction by not trying to use those figures to adjust population counts for apportionment purposes in his own later submission to Congress. Wall appeared to concede that the president would have to honor such an injunction. But this issue could potentially provide an alternative basis for getting rid of the case on procedural grounds.

I doubt, however, that there will be a majority on the Court for that approach, because it would open up the possibility of widespread presidential malfeasance in future cases, where the president could evade court decisions by claiming that no judicial injunction could restrict his personal actions. It seems more likely that a majority of justices might either dismiss the case based on ripeness, or simply wait to see what happens over the next few weeks, before issuing a decision.

To be clear, both Wall and counsel for the plaintiffs emphasized that they would prefer the Court to decide the issue sooner rather than later. Many of the justices, however, seem much more reluctant. The conservatives, especially, seem interested in finding some way to avoid the substantive issues in the case.

Perhaps for that reason, there was very little discussion of those issues. A few justices—including newly appointed Justice Amy Coney Barrett—raised the point that no previous president had ever tried to systematically exclude undocumented migrants from the apportionment count. Barrett noted (correctly) that "a lot of the historical evidence and longstanding practice really cuts against your position." Wall gave the predictable answer that this is all a matter of presidential discretion, and that the fact that previous presidents didn't use it, doesn't mean Trump cannot. Still, Barrett's comments were among the few that touched on the substantive issues, and what she said suggests that the administration may not be able to count on her vote should the Court ever decide these questions.

There was almost no discussion of the fact that the text of Article I of the Constitution and of the Section 2 of the Fourteenth Amendment requires apportionment based on the total number of "persons" in each state, with the sole remaining exception of "Indians not taxed" (who at the time were not citizens of the United States). As University of Texas law Prof. Sanford Levinson and I explain in our amicus brief, this text clearly indicates that undocumented immigrants and other non-citizen residents must be included in the count, based on the normal meaning of the word "persons" and the fact that any other plausible approach would render the exclusion of "Indians not taxed" superfluous. The administration's claim that undocumented immigrants are not really residents or "inhabitants" of a state makes little sense, given that most have lived there for years and have no other home. That latter fact also distinguishes them from diplomats and tourists (who historically have not been counted).

At this point, however, it's far from clear that there is a majority of justices who actually want to decide these issues. At the very least, they may want to sit on the case unless and until it becomes clear that they really have to deal with the merits. Even Barrett indicated that it might be best for the Court to wait until the Trump administration comes up with some more definitive numbers on exactly which people they plan to exclude.

Surprisingly, in my view, there was also little discussion of the issue of whether the plaintiff state and local governments have standing to pursue the case, even though this is one of the questions the Court explicitly flagged when they granted the petition for writ of certiorari to hear the case. Some of the discussion of data availability can be seen as relevant to the standing issue, however. If the administration cannot get the data needed to exclude more than a small number of undocumented immigrants from the apportionment count, then perhaps there will be no effect on the number of House seats each state gets, and therefore no "injury" to base standing on.

CNN Supreme Court reporter Ariane de Vogue similarly concludes that many of the justices might prefer to avoid deciding the case. Her impressions are much the same as my own.

In sum, this was one of the least informative oral arguments I have ever seen in a major Supreme Court case. The one thing we learned is that many of the justices may prefer to avoid deciding the substantive issues at stake. Whether they will be able to do so remains to seen.





NEXT: Which Ninth Circuit Judges Were Waiting For A Democratic President to Take Senior Status?

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  1. Wouldn’t this benefit red states that get to gerrymander House districts very soon??

    1. It would probably hurt California in their gerrymander.

      1. California will be losing a congressional seat. Texas and Florida will be the big winners and that means Republicans get to draw the new districts for new Republican congresspeople. Trump is a moron for opposing this…but I’m sure everyone realizes that by now.

        1. California could lose more if the large number of illegals are not counted, but then so would Texas.

          1. Correct, it’s a zero sum game and Republicans will benefit from reapportionment which means they benefit from counting illegals in the census.

  2. ” There was almost no discussion of the fact that the text of Article I of the Constitution and of the Section 2 of the Fourteenth Amendment requires apportionment based on the total number of “persons” in each state, with the sole remaining exception of “Indians not taxed” (who at the time were not citizens of the United States).”

    That parenthetical really does not help your position.

    1. It doesn’t hurt his position either. “Indians not taxed” were explicitly excluded as such. The why is irrelevant to the meaning of the constitutional text.

      1. It does indeed help Somin’s position. If “persons” meant “citizens” then there would have been no need to exclude Indians because they were not citizens at the time, and thus were already excluded.

        Out of curiosity, what do we do about Indians today, census-wise? Are they all subject to tax, having been made citizens statutorily, such that “Indians not taxed ” is a null set?

        1. My understanding is that today all Indians are counted in the census because “Indians not taxed” is an empty set.

      2. Not entirely irrelevant. The question can be asked, why are “Indians not taxed” called out? The usual assumption is that every phrase in the text of a law has meaning, yet if we interpret the law in this case to only refer to citizens, then this reference to the native tribes is pointless. This suggests that the law quite intentionally included other non-citizens residing in the United States, though even in that case, you could argue that only those residing here LEGALLY are included (e.g. holders of Green Cards, work visas, student visas, etc.). But this still conflicts with the standard practice throughout the history of this country; no administration has ever attempted to exclude illegal immigrants from the numbers used for Congressional allocation.

        1. One interpretation is that they were called out as the only significant population of non-citizens to be found in US territory. The parenthetical does not help his position, because it links their being called out TO that lack of citizenship.

        2. After the Revolutionary War, many states confiscated the property of loyalists, some of whom remained in the US. More research is needed on the legal status of loyalists and their families. Were they considered citizens? Were they allowed to vote?
          There were also many non Indian, mixed race and Spanish residing in states and territories whose legal status has not been researched. Some were considered a foreign threat and certain expulsion efforts made. This history seems to be ignored in discussing citizenship and other constitutional questions.

  3. Unless the court acts unusually quickly, the case will be moot before a decision is made, either by the deadline expiring or by President Biden rescinding the information request.

    1. Since the deadline is 12/31/2020 and Biden doesn’t become President until 1/20/2021, there is zero probability of Biden rescinding the information request.

      1. He could however reverse and decisions Trump makes based on any information he gets (if he gets it before 1/20/21)

        1. true, but such actions wouldn’t moot the present case because one way or another, the present case will be over by that point.

  4. Of course they do not want to decide this case on its merits, because the merits are so clear in favor of the proposition that the government cannot exclude undocumented persons from apportionment that the Court must be highly embarrassed in taking the case at all.

    This is a situation where principles, for both the textualists and the originalists will come into conflict for the conservatives who hate undocumented residents and want to side with Trump. So it is a test, but the smart money is that at least two or three of the conservatives will fail the test of judicial integrity and act on politics, not principles.

    1. Of course they do not want to decide this case on its merits, because the merits are so clear in favor of the proposition that the government cannot exclude undocumented persons from apportionment that the Court must be highly embarrassed in taking the case at all.

      I agree. The Administration really has no case here, and the Court ought to say so, unanimously. Not doing that is cowardly.

    2. ‘Of course they do not want to decide this case on its merits.’ You really should set up a table somewhere with tarot cards or a crystal ball, if your mind-reading skills are this good.

  5. with the sole remaining exception of “Indians not taxed”

    Is this really still an exception? My understanding is that at this point, “Indians not taxed” is an empty set.

    1. At the time of the fourteenth amendment, there were both taxed and untaxed Indians. For example, the Mattaponi and Pamunkey have been taxed since 1677. (see for the most recent payment. )

      1. [I’ll add that “Indians not taxed” is something of a joke regarding a euphemism. One must recall that the first settlers that established Jamestown in 1607 were all male: the only women were Indians who, if from a family subject to tax, were suitable “brides.” Accordingly, the Indian tax rate was made reasonably low.]

        1. The women started arriving as early as the next year, you know. However, this really has no relevance to “Indians not taxed”, being well over a century prior to the Constitution, and involving a vanishingly small number of people.

      2. That there were both taxed and untaxed Indians at the time of ratification is irrelevant to whether or not today “Indians not taxed” is an empty set and therefore it is not really an exception anymore.

        1. The original, though, had specific meaning which is as misunderstood as is Jacobson v. Massachusetts. The addition of the “Indians not taxes” clause does _not_ have the meaning many understanding to have and the omission of the understanding is important. At the time of passage there was understood to be a difference between some classes of persons and other classes of persons… and so a similar distinction drawn today is nothing new.

          1. “and so a similar distinction drawn today is nothing new.”

            Yes, but you don’t get to just read such new (but similar) distinctions into the existing constitutional text. If you want to add new (but similar) distinctions to the constitutional text, you have to do it by amendment.

        2. Oddly enough, there are indeed quite a few Indians not taxed (due to the effect of the Per Capita Act of 1983).

  6. “Undocumented immigrants,” doubleplusgood example of Orwellian doublespeak. Yea!

    1. It’s a framing choice, just like “illegal immigrant.” Neither is less accurate than the other. That you seem to think your preferred framing is the only correct one just shows you’ve been suckered by your own side’s rhetorical advocacy.

      1. Yep, words don’t mean what they mean, they mean what our “betters” want them to mean, wow!

        1. … s/he continues, oblivious to the irony of parroting manufactured talking points.

          1. Is the choice to use “immigrant” vs. “alien” also one of framing? Dictionary-wise they mean very different things…

      2. “It’s a framing choice, just like “illegal immigrant.” Neither is less accurate than the other.”

        Sure. Some people believe that the fact that people are in the country illegally is relevant to whether or not they should be counted for purposes of apportionment.

        So they choose to frame the issue in a way that highlights that fact.

        Other people believe that the issue should always be framed in a way that conceals that fact, as if the fact should not be discussed.

        1. Question: Are you more inclined to describe people driving without licenses as “unlicensed drivers” or “illegal drivers”?

          1. Most states I’m aware of call it “unlawful operation of a motor vehicle” or some variant.

            1. The names of the various infractions that can make one an “undocumented immigrant” are similarly anodyne. Try again, chucklehead.

              1. LOL. That sort of word salad is exactly what I’d expect from someone whose preplanned dialogue got interrupted by inconvenient facts.

  7. If armed persons from Japan invade Hawaii, must they, as persons, be included in the census? Or if, during the year of a census, Mexico orders a number of persons to step across the border into Texas, must these persons be counted?

    More generally, at what point does the law properly recognize absurdity? It is obviously absurd to consider that those persons who are here illegally — persons who are here wholly without the consent of those who are actual parties to our Constitution — should, due to solely their illegality, determine the apportionment of resources which can then be used to modify the controlling document: the Constitution is not a suicide pact and cannot be taken to authorize the absurdity of a peaceful takeover by invading persons.

    1. If non-citizens are counted, and given the finite number of House seats, a state that gains due to non-citizens does so at the expense of every other state. Because House seats are currently a zero-sum game this matters greatly.

      Not sure where I land on it though, tbh. But I am inclined to think that the above seems to outweigh the political well-being of non-citizens.

    2. You do realize this is better than the 3/5ths Compromise?!? Illegal immigrants tend to go to Texas and Florida and Georgia which means they will end up helping Republicans get new congressional seats but they won’t be voting. Best case scenario for Democrats is Republicans in Texas and Florida get rid of a whitey Democrat in favor of a Latino Democrat.

      1. Unless this is the nose under the tent. If non-citizens deserve representation, should they not get a voice in who it is that represents them? Seems like a logical flow to me. As I said above, I’m not 100% on this case but my gut tells me that they should not be counted. This is just one more reason to add to the list.

        1. The thing is, though, what you’re talking about is really not the issue here. The Supreme Court is not considering what the law should be, but rather, what it is. If we were talking about amending the Constitution, you could quite reasonably argue the amendment should specify that only citizens (or legal residents, if you want to include people with Green Cards or long-term visas) should be counted for purposes of determining how many seats in Congress each state gets. But the question before the Court is what the law is now, not what it should be. And it does seem that the authors intended to include all residents, else they would not have needed to call out “Indian not taxed” as an exception.

          1. I get that in the legal sense (and yes, this is a predominantly “legal” blog). However, isn’t there some aspect of sound jurisprudence that says that rulings that lead to the absurd should be avoided? If the law clearly states “persons” without qualifiers… then the absurd arguments about counting invading forces are sound arguments. To agree to skip over that absurdity… nothing in the law precludes counting tourists, either. I am not sure if I’m a textualist, originalist, or what other options there are… IANAL.
            But from my living room and life experiences I think the SCOTUS has abandoned its job as the protector of the rights of people first and foremost and instead justified itself with “the law” and have done so with consequences that result in rather absurd outcomes. At some point in the court system there must be an aspect of something besides the “law” that is considered. The philosophy, the context, the history… none of those things are necessarily codified, but they are what gives the law its purpose. To ignore those things in ways that allow the plain law to operate against them is to ignore the purpose of the court in the first place (within the context of the natural rights framework that gave birth to our system and for an example see Wickard v Filburn or Kelo or even the Dredd Scott case). And within that framework… “persons” including any one and every one seems to be a rather odd reading.

            But again… I’m open on this one. Just “muh gut” so far.

      2. Minor detail; the largest group of (whatever the current acceptable name for “those people” is) is in New York.

        1. Minor detail—you are waaay off. California and Texas have by far the most with Texas having the highest percentage of illegal immigrants. Including illegals in the census would benefit Republicans because Republicans control more state legislatures including in states that will gain House districts.

      3. I have full faith that if the “census minus immigrants” tallies would give the Dems any seats, that Trump would opt to use the “full census” numbers instead.

      4. Illegal immigrants tend to live in liberal areas. Counting illegals may help Republicans in the Electoral College but hurt them in the House and in state legislatures.
        The ideal solution for Republicans might be to count illegals when allocating House seats but not when the states redistrict. That may will be constitutional.

    3. “The Constitution is not a suicide pact” is not a legal argument, and is only said because there isn’t one to make.

      1. Ha! Valkanis makes me laugh out loud! Certainly, though, the converse is not true; that is, one could not argue that the Constitution _is_ a suicide pact. So, even if not a legal argument it is a logical argument… and I do not believe our Courts have evolved to the point that a logical argument is illegal.

      2. No. It is a recognition that in extreme circumstances we will ignore the Constitution
        For example, if COVID-19 had a 50% death rate Trump would have ordered Apple and Google to implement contact tracing in their apps, issued orders for mandatory quarantines, testing, and contact tracing, and ordered companies to produce PPE and then distributed it with federal resources.
        He would have enforced these orders with US Marshals, a federalized National Guard, and if necessary the US military. And if Courts had objected he would have asked them how many regiments they had while pointing out that the first Constitution is not a suicide pact

        1. For example, if COVID-19 had a 50% death rate Trump would have

          called it a hoax, blamed it on the Democrats, and gone golfing.

          1. My own theory builds on that : Trump though the pandemic would remain focused in densely populated areas which typically vote Democratic. This made Trump’s course an easy call : Downplay a plague leaving his voters untouched, require no sacrifice affecting his political base, blame suffering in Democratic regions on Democrats.

            You’ll say this theory explains Trump’s bizarre passivity & dissembling, but requires him to monstrously stupid, blind and indifferent to real suffering.

            I’ll say keep at it – maybe you can find some real objections if you continue trying……

            1. This is mentally ill nonsense. Get help.

          2. I’ve been reading the conspiracy’s posts and comments for years. You always used to make great comments, even if I didn’t always agree.

            If you really believe Trump would have reacted the exact same way for a virus that had a 50% fatality rate instead of 0.5%, then you’ve really let your TDS make you a shell of what you used to be.

            What a shame.

            1. Has been ignorant for years now, and I suspect not just due to Trump.

    4. a peaceful takeover by invading persons.

      No takeover. No invasion.

      Just “persons.”

      1. I use the term “invade” to mean “to enter (a place, situation, or sphere of activity) in large numbers, especially with intrusive effect.”
        Is the intrusive effect arguable?

    5. It is obviously absurd to consider that those persons who are here illegally — persons who are here wholly without the consent of those who are actual parties to our Constitution — should, due to solely their illegality, determine the apportionment of resources which can then be used to modify the controlling document

      This is nonsense.

      First, they are not being counted “solely due to their illegality.”

      Second, no one is talking about them voting, so they are not going to “determine the apportionment of resources which can then be used to modify the controlling document.”

      Third, They are part of “the whole number of persons,” no matter what BS Trump and the SG claim.

      1. First, if they had been turned away at the border prior to illegal entry, they would not be “persons” to be counted.

        Second, yes, quite a few are talking about illegal aliens voting. Even if they themselves do not vote their mere presence would, as you note, tip the scales of representation in a manner which would encourage representation by those who favor increased numbers of persons to further tip the scales.

        Third — and I must ask again — what persons _should_ be excluded from a count? Is is unreasonable to exclude from a count of persons those persons who are prohibited from being present?

        1. Is is unreasonable to exclude from a count of persons those persons who are prohibited from being present?

          Yes. It is unreasonable to exclude them if the rules – the Constitution here – specify that they are to be included if present, whether legally entitled to be or not.

          All these arguments are just an effort to get around the very plain meaning of “total number of persons.”

          1. That absolutist interpretation says that we’ve been wrong for 200 years in excluding tourists and foreign diplomats from the Census counts. Is that really your claim?

            1. Precisely. We habitually — and perhaps wrongly — exclude all sorts of persons in addition to Indians not taxed pursuant to the 1983 Per Capita Act. The “plain meaning” of the text has always been the commonly understood meaning, not a technical gloss.

            2. From the Census site.

              The Census Act of 1790 established the concept of “usual residence” as the main principle in determining where people should be counted, and this concept has been followed in all subsequent censuses. “Usual residence” has been defined as the place where a person lives and sleeps most of the time. This place is not necessarily the same as the person’s voting residence or legal residence.

              Determining usual residence is straightforward for most people. However, given our nation’s wide diversity in types of living arrangements, the concept of usual residence has a variety of applications. Some examples of these living arrangements include people experiencing homelessness, people with a seasonal or second residence, people in group facilities, people in the process of moving, people in hospitals, children in shared custody arrangements, college students, live-in employees, military personnel, and people who live in workers’ dormitories.

              Presumably tourists are not considered to have a “permanent residence” in the United States. Pretty clear.

              Diplomats are counted. See link below. (Don’t want to put two into one comment. PITA)

              1. As promised.

                Citizens of foreign countries who are living in the United States, including members of the diplomatic community, should be counted at the U.S. residence where they live and sleep most of time.

                Citizens of foreign countries who are temporarily visiting the United States on vacation or business on April 1, 2020, should not be counted.

                Again, I don’t know the basis for these rules.

  8. “The Census Bureau recently indicated they may not be able to get the president the data on undocumented immigrant populations he would need to submit apportionment numbers that exclude them from the total population count, before his term runs out on January 20.”

    Mighty convenient since the Census Bureau wants to count illegal aliens.

    There is no Deep State. Federal bureaucrats favor no political party or point of view.

    1. Because anything Trump doesn’t like must be part of a plot against him.

      1. With Jeff Sessions defending them what choice did they have? And what does this have to do with the Census Bureau?

      2. It was sarcastic.

        1. There is no longer a “sarcastic”.

    2. Meh.

      If Trump had gotten away with the citizenship question, they probably would have been able to give a much faster answer (it being right there in the census, after all).

      As-is, he’s asking them to do statistical voodoo to try and “fix” the census and infer the “real” numbers, because relying on the cases they can actually look-up (ICE detainees, for example) doesn’t give enough of a difference to satisfy Trump’s intent.

      So it’s not Deep State, it’s an unreasonable manager making unrealistic expectations.

  9. The statement “The administration’s claim that undocumented immigrants are not really residents or ‘inhabitants’ of a state makes little sense, given that most have lived there for years and have no other home” does not hold up when compared to other scenarios.

    Consider, for example, the way the IRS, the Census and everyone else treat active duty military. While you are serving, whether overseas or stateside, you are considered a resident of your home state regardless of the fact that you’ve lived on or near army bases for the past 20 years and have no other home. If you were recruited out of Delaware, a Delaware resident you remain unless and until you take explicit actions to demonstrate your intent to make someplace else your home (such as applying for a drivers license, registering to vote, signing up for jury duty, etc). Merely having a local job and renting (or even buying) a house are not sufficient to change the presumption that you intend to go “home” someday.

    I don’t know whether illegal aliens should be treated more like permanent residents or more like long-term-but-still-temporary visitors. The plain wording of the Constitution provides no guidance that I can see to that question.

    1. Are you sure?

      (Scroll to page six.)

      U.S. military personnel assigned to group quarters on a military base in the United States or Puerto Rico on Census Day will be counted at the group quarters.

      •Military group quarters include: Military barracks and dormitories; Military medical treatment facilities; and Military disciplinary barracks and jails.

      •A point of contact on the military base will distribute individual questionnaires to each person assigned to group quarters, collect the completed questionnaires, and return the questionnaires to the Census Bureau.

      •U.S. military personnel living in the United States or Puerto Rico (either on base or off base) who are not assigned to military group quarters on Census Day (and dependents living with them) will be counted at the residence where they live and sleep most of the time.

      •Each separate housing unit will receive a questionnaire or invitation to respond for that household via mail, internet, or phone.

      1. Huh. Thank you for sending that along. I’ve been out for a while now and those definitely are not the rules that I remember from the last census that came around while I was serving. Do you know if that was changed by statute or by executive interpretation?

        In other words (and critically important to this debate), who got to make the call?

          1. That’s a common answer for you. Service members have a home address of record, used for such things and referenced. As for who made the call? Likely some faceless bureaucrat.

  10. This is the stupidest possible case I can imagine. No, the president doesn’t just get to decide whether illegals are included or not.

    Now, you can make the argument against one person one vote and that illegals dont count … but certainly not that the president just gets to decide if they do or don’t right? Its a constitutional question to be handled (and has been handled!) by the courts! If you wanted to bring a case just say to the court one person one vote is wrong please overturn it … they might be more than happy to. But its a constitutional question Trump doesn’t get to answer, and his lawyers appear to be saying Trump has full discretion here.

    If anyone did have discretion, it would be congress. And this is made irrelevant anyway because of one person one vote (which I think is wrong! But its precedent right?) I’m really confused here.

    Also, don’t Republicans benefit from this? Illegals can’t vote but they are adding representation to states like Texas and Florida … I honestly don’t understand why Trump is opposed to this.

  11. “Roberts: We expedited this case in light of the Dec. 31 deadline for the secretary [of Commerce] to transmit the Census to the President. Is that date still operative? Do you still need a decision by that date?”

    So the constitutionality of the census depends on the incompetence of federal bureaucrats? WTF?

    1. More like “the constitutionality of the census depends on whether or not Roberts thinks he can stall long enough to render it irrelevant”.

      He’s not exactly known for making decisions when he can get away with a punt.

  12. Tourists are clearly persona in a state at the time of the census. They are legally present but they do not have permission to reside in the United States. They are not counted in the census
    The Constitution makes no mention of residence.
    I think one can argue that tourists should be counted, but if they are not then there is a good argument to exclude illegals for the save reason. They have no permission to reside in the United States

    1. Thats a fine argument, but the question here is, can the president unilaterally decide to make those kinds of restrictions? I dont think he is. Congress could pass a law (strange concept nowadays apparently) and then that could be litigated …

      1. I note that the change from counting college students as residents of their prior homes, to being residents of the college, was handled administratively, not legislatively.

      2. Why do you think this is up to Congress and not the President?

        1. Because the constitution specifically lays out who counts and doesn’t, for matters of importance anyway. The constitution specifically says that all citizens count, native Americans don’t, slaves are 3/5ths, then slavery was abolished and the 14th amendment defines the term “citizens”, which is where 1 person 1 vote comes from … nothing in here is subject to any discresion on behalf of anyone. Its defined by the constitution, the courts interpreted the constitution, so its up for the courts to decide.

          But if someone does have discresion, it would certainly be the lawmaking powers and not the executive branch, with limited jurisdiction. And I strongly doubt the founders intended to give the executive total control over redistricting such as to define Congress as he wishes. Congress is not subservient to the executive branch. Congress can define its own rules for the Census count, that is undisputed. The number of people needed per seat is defined by congress in a formula in an old statute, and the courts have said that’s fine so long as its roughly equal.

          Now, as Brett said, maybe there are specific cases where the administrators made administrative decisions. Perhaps, but I would say Congress must have provided the authority to make small decisions. Under the major rules doctrine, unless Congress specifically granted such a large amount of authority to exclude illegals, I would say the lresident doesn’t have it.

    2. I think one can argue that tourists should be counted, but if they are not then there is a good argument to exclude illegals for the save reason. They have no permission to reside in the United States

      Tourists don’t live in the United States, but they have permission to be here. Illegal immigrants do live in the United States, though without permission.

      Other than that, the analogy is perfect.

      1. That contradicts Reaons analysis that anyone not a untaxed indian is a person. If we exclude some persons based on their intention of residing here, or their time being here, or their job, or their foreign citizenship, then why not exclude other persons based on the same factors?

        Really this is all just one more example of how the Congress needs to get their act together and do something about illegals. Remove birth citizenship, define persons, and deal with illegal entry to start.

    3. But of course it’s not the “same reason.” Tourists aren’t excluded because “they do not have permission to reside in the United States.” Tourists are excluded because they don’t reside in the United States.

      1. Many “facts” are being assumed by many posters. In reply to Justice Alito’s examples, counsel for New York opined that visa holders should not be included but then said visa holders overstaying their visa should be included? How does “reside” explain this?
        Many foreign workers in the US “live” in their home country part of the year, have families their, intend to return. Many would agree that do not “reside” in the US.
        The Chief Justice rudely stopped Justice Alito from continuing with his list of examples which I thought helped clarify the lack of factual predicate for the states’ arguments.

  13. There seems to be a contrast between the court’s handling of the Agudath Israel case and what they may be trying to do here.

    There, even though the restrictions had been reduced, they went ahead and ruled them unconstitutional. Never mind that it wasn’t really necessary to do that, as the dissenters pointed out.

    Here, the conservatives seem to want to avoid ruling at all costs, despite their expressed doubts – Barrett and Kavanaugh at least – about the government’s case. Why not just rule and be done with it?

  14. Section 2 of 14th amendment:
    “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one eighteen years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one eighteen years of age in such state.”

    So anyone denied the right to federal voting, excepting prisoners and the like, does not count toward representation. Legal and illegal aliens alike, as long as they are denied the vote, do not count toward representation.
    This seems straightforward and self implementing. No wonder the SCOTUS is trying to dodge hearing this case.

    1. Um, you’ve read it backwards. Denying the right of noncitizens to vote doesn’t count against representation.

      1. To get your reading would be to read the entire portion beginning with “But when the right to vote…” as not providing context as to who the “persons in each state” are. I suppose it is possible, but seems unlikely that the drafters would use person in sentence one, then without signifying that they are speaking about a different set of people begin to provide instructions on when/how the amount of representation may be altered based only on citizens. In other words… a citizen can lose their representation, but a non-citizen can’t. That’s the only way your reading seems to make sense to me.

        If I’m missing something… please lay it on me. I’m undecided on this.

    2. That the part about apportioning representatives didn’t have any strike-throughs, while the part about voting did, probably should have been a clue that your interpretation is nucking futs.

  15. Why not treat illegals like citizens are treated and collect all sorts of private info about them during the census? Then use it to deport them so they arent counted. Win win.

  16. I don’t think that we can say that the text of the Constitution “clearly” resolves the issue of illegal aliens, because there were no illegal aliens as we now know them in 1791.

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