Trump’s own Supreme Court appointees can’t stomach his
attempts to rig the Census
Opinion by
Columnist
November 30, 2020 at 3:02 p.m. CST
President
Trump may only have seven weeks left in office, but he’s determined to do as
much damage in that short time as possible, especially to immigrants and the
places they live.
But at
least one of his initiatives — to exclude undocumented immigrants from Census
counts that determine how much representation each state gets in Congress — is
so plainly unconstitutional, so far outside the scope of his powers, and so
absurd in practical terms that not even a Supreme Court with a conservative
supermajority that includes three Trump appointees can stomach it.
That
seemed to be clear when the court heard
oral arguments Monday in the case of Trump v. New York, which
arises from a
memorandum the administration issued this summer that declared:
For the purpose of the
reapportionment of Representatives following the 2020 census, it is the policy
of the United States to exclude from the apportionment base aliens who are not
in a lawful immigration status.
As one
expert told me at
the time, “The president does not have the power to decide who counts and who
doesn’t. The Constitution already decided that for him.”
That
would be the 14th Amendment, which states that “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.” There is simply no ambiguity in “the whole number of persons” — it
doesn’t say citizens or adults or anything else; it says persons.
But
Trump’s position — left to be argued before the court by Acting Solicitor
General Jeffrey Wall — is that despite the 14th Amendment, since people just
passing through a state don’t get tallied — for instance, a Portuguese tourist
visiting Disneyworld at the time of the Census isn’t counted as a resident of
Florida — “persons” really means “inhabitants." And the president gets to
unilaterally decide who’s an inhabitant and who isn’t.
Even
Trump’s own appointees had trouble not laughing that idea out of court. “A lot
of the historical evidence and longstanding practice really cuts against your
position,” said Justice Amy Coney Barrett politely.
And
even if Trump’s position weren’t so obviously unconstitutional, it suffers from
a practical impediment: The whole point of the Census is that it’s as precise a
count as we can manage, yet there’s no way to precisely count the number of
undocumented immigrants Trump wants to exclude. We have estimates from
various groups that range between 10.5 and 12 million, but even the skilled
demographers who come up with them are careful to note that it’s almost
impossible to peg the number with certainty.
So how
would Trump know how many people to subtract from each state’s population? Was
he just going to guess?
Tasked
with defending the indefensible, Wall argued that for now, Trump isn’t even
going to try.
“Career
experts at the Census Bureau confirmed with me that they still don’t know even
roughly how many illegal aliens [they] will be able to identify, let alone how
their number and geographic concentration may affect apportionment,” said Wall.
So
Trump will try to find as many undocumented immigrants as he can — perhaps
starting with those in custody awaiting deportation — and begin subtracting
from there.
This is
essentially the last gasp of the Trump administration’s efforts to use the
Census to erase undocumented immigrants and enhance the power of Republicans.
As you’ll recall, they tried to add a question about citizenship on
the Census, knowing that its presence would discourage immigrants — documented
or not — from answering. That would mean fewer immigrants counted, and fewer
federal resources and representation directed toward the communities where they
live.
But the
administration’s effort to add the citizenship question was carried out so
buffoonishly that it imploded. They repeatedly
lied about what they were doing — even under oath — and
eventually the Supreme Court turned back the effort, calling their rationale
“contrived,” after which the administration dropped
it altogether.
And
once again, the administration’s sinister intentions are moderated only by
their incompetence. As became clear in Monday’s oral arguments, the court could
easily punt on the apportionment question, because time is running out on
Trump. The Census Bureau is supposed to transmit the results to him by December
31 — a deadline it will probably fail to meet. Then, according to the law, the
president passes the results on to Congress to determine apportionment.
It’s at
that point that Trump wants to take his magical
hurricane Sharpie and use it to cross out millions of persons — yes, persons
— living in the United States. But since he probably won’t have time to do it
before Joe Biden takes office on January 20, the court seems inclined to not
decide the issue at all. After all, when Biden takes office he won’t be trying
to muck with the Census in this way.
It’s
only a small consolation to hear the court send a clear signal that it isn’t
going to give Trump what he wants. Trump’s time may be short, but until the day
he leaves, he’ll be reminding us that for all the damage he did, had he gotten
his way it would have been even worse.
