Donald Trump will no longer be president in two months. But an unconstitutional memorandum he handed down last July could potentially shape both US policy and American elections for the next decade, if the Supreme Court, scheduled to hear the case on November 30, allows that memo to take effect.
The Constitution provides 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.” Nevertheless, Trump’s memo claims that “aliens who are not in a lawful immigration status” should not be counted when seats in the House of Representatives are allocated following the 2020 census.
The memo, in other words, violates the unambiguous text of the Constitution, as well as federal laws governing who should be included in census counts.
An estimated 10.6 million undocumented immigrants live in the United States, and nearly 20 percent live in California. So the nation’s largest blue state could lose as many as three House seats if Trump succeeds in his plans to cut these immigrants out of the apportionment count. (It is likely that the red state of Texas would also be hit hard — but Texas’s Republican legislature is likely to draw gerrymandered maps that would impose the cost of any lost House seats on Democrats. California uses a bipartisan redistricting commission to draw legislative lines.)
The courts have thus far approached Trump’s memo with considerable skepticism. Four different three-judge panels have all unanimously concluded that Trump may not exclude undocumented immigrants from the census count. That means that a dozen judges, some appointed by Democrats and some by Republicans, all agree that Trump’s memo is unconstitutional.
The legal questions in these cases, in the words of one lower court that rejected Trump’s arguments, are “not particularly close or complicated.”
Nevertheless, the Supreme Court will hear oral arguments in Trump v. New York, one of the four cases challenging Trump’s unconstitutional memo.
The mere fact that the Court will hear this case does not necessarily mean that a majority of the justices are inclined to side with the lame-duck president. The justices normally get to pick and choose which cases they want to hear — ordinarily, four justices must agree to hear a case before it can be argued in the Supreme Court. But federal law sometimes requires the Court to decide cases that involve time-sensitive, election-related issues, such as how many seats each state will have in the next House of Representatives.
New York is one of these rare cases that arise under the Court’s mandatory jurisdiction. The justices cannot simply ignore this case even if they agree with the lower courts that ruled against Trump.
So it’s possible, perhaps even likely, that the Supreme Court will agree with the unanimous consensus of the lower court judges who’ve considered Trump’s memo and rejected it. Nevertheless, with six conservatives on the Court — including three Trump appointees — there is no guarantee that Trump will lose.
Trump claims he gets to decide who counts for purposes of apportionment
Trump’s memo claims that the Constitution’s provisions, governing who should be counted for purposes of apportionment, should not be read literally. “Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census,” Trump says in his memo, “that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.”
He’s not wrong that some foreign nationals, who may be physically present in the United States during a census, are not counted. Tourists, foreign diplomats, international businesspeople, and other non-citizens who temporarily visit the United States typically are not included in the census. “The term ‘persons in each State,’” Trump’s memo fairly reasonably notes, “has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”
This general premise — that only “inhabitants” of a state, and not temporarily foreign visitors, should be counted by the census — is fairly uncontroversial. But Trump then claims the power to decide who counts as an “inhabitant” for census purposes. “Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment,” his memo argues.
And Trump, according to his lawyers, “validly exercised that judgment in deciding to exclude illegal aliens ‘to the maximum extent feasible and consistent with the discretion delegated to the executive branch.’”
But Trump’s lawyers do not cite an actual statute giving Trump the power to determine who counts as an “inhabitant” of a state, and the federal laws governing the census suggest that Trump does not have this power. Those laws provide that the secretary of commerce shall report the “total population by States” to the president once the census is done counting individuals, and they require the president to “transmit to the Congress a statement showing the whole number of persons in each State” once he is done reviewing the census. These references to the “total population” and the “whole number of persons” suggest that the president may not pick and choose who is counted.
Moreover, as the lower court that ruled against Trump in New York held, “it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded” from the census by claiming that they are not “inhabitants” of a state. “To the contrary,” the court explained, while quoting from Merriam-Webster’s dictionary, “the ordinary definition of the term ‘inhabitant’ is ‘one that occupies a particular place regularly, routinely, or for a period of time.’”
Many undocumented immigrants reside in a state for “many years or even decades,” the court continued. These immigrants are as much “inhabitants” of those states as any other resident. Two of the judges who joined this opinion, it is worth noting, were appointed by Republican President George W. Bush.
Unable to cite any legal authority giving Trump the power to decide who is an “inhabitant” of a state, Trump’s brief points to a handful of other sources — some legal, some otherwise — which are at least somewhat consistent with the outgoing president’s understanding of who counts as an “inhabitant.”
Trump’s brief, for example, quotes a line from a 1992 Supreme Court decision, which says that the determination of whether a particular individual should be counted by the census may “include some element of allegiance or enduring tie to a place” — though it’s unclear what quoting this line adds to Trump’s argument because an undocumented immigrant who has long resided in the same state has an “enduring tie” to the place.
Similarly, Trump’s brief points to The Law of Nations, a 1758 treatise by the Swiss lawyer Emmerich de Vattel, which defined the term “inhabitant” to include “strangers, who are permitted to settle and stay in the country.”
American courts do not typically rely on 262-year-old books by European authors to override the unambiguous text of the Constitution. And there’s also a glaring problem with relying on Vattel to determine who should be counted by the census. As one of the plaintiffs’ briefs in the New York case explains, “Vattel defined ‘inhabitants’ as ‘distinguished from citizens’ — i.e., in his lexicon, only noncitizens were classified as ‘inhabitants.’”
Thus, if the Supreme Court were to rely on Vattel’s definition of an “inhabitant” to determine who should be counted by the census, it would exclude US citizens from the count. House apportionment would be determined solely based on how many non-citizens were lawfully residing in each state.
New York is an early test of the new Supreme Court majority’s commitment to the rule of law
The Supreme Court hears a lot of difficult cases, but Trump v. New York is not one of them. Trump’s memo is at odds with clear constitutional text. Trump’s brief offers little support for his arguments. Every judge to consider Trump’s memo has ruled against it. And it’s not even clear that the justices would have agreed to hear this case in the first place if it didn’t fall within the Court’s mandatory jurisdiction.
But the case is also being heard by a deeply conservative Court that appears emboldened by the confirmation of new Justice Amy Coney Barrett to move the law dramatically to the right — especially in cases impacting elections.
New York, in other words, will be an early test of just how emboldened the Court’s new majority has become. If the justices back Trump in New York, despite clear constitutional text to the contrary, then that’s a worrisome sign about the future of the rule of law in the United States.
In any event, the Court is likely to decide this case very quickly. By law, Trump must inform Congress of how House seats will be apportioned among the states by January 10, 2021.