SCOTUS Should Ban Illegals From The Census

There are many drivers behind the new nullification crisis that the left is stoking over immigration, but perhaps the most significant political one is that the Trump administration’s mass deportation policy poses a greater threat to Democrat Party power than perhaps any other single initiative.

If federal authorities were to successfully remove millions of illegal aliens from the country, some estimates suggest it would result in the reallocation of nearly a dozen House seats and electoral college votes. Billions of dollars in taxpayer funding would be redirected out of blue states and into red ones.

That is because the census figures used for congressional apportionment, redistricting, and redistributing federal funds have historically counted all residents including illegal aliens. On balance, this has benefited Democrat-led states — where such populations are largely though not exclusively concentrated — over Republican-led ones.

The projected outmigration of citizens from blue to red states would compound the negative effect of the deportations for Democrats as we head towards the 2030 census, potentially swinging control of the House and the presidency in Republicans’ favor going forward.

Missouri Case

Thus, defeating the Trump administration’s immigration policy by any means necessary may be seen as an existential imperative by the left. The Minnsurrectionists and their comrades-in-arms across the country, including in the courts, are trying to stymie the president’s deportation push. But Missouri has just filed a lawsuit that could provide critical insurance against the continued distortion of our political system by the non-citizens who might remain.

Missouri claims that by counting illegal aliens and temporary visa holders during the 2020 census, federal authorities robbed it of one House seat. Should that practice persist, it alleges the feds will rob it of another such seat following the 2030 census. Asserting that the counting of these populations in the census, and apportioning accordingly “steals federal representation from Missourians and transfers it to States who artificially inflate their population by harboring illegal aliens,” the Show-Me state is challenging the practice’s constitutionality and legality.

Missouri seeks to prevent federal authorities from unduly awarding an estimated 11 House seats and electoral votes in 2030 to left-leaning states with large illegal alien populations, such as California, Illinois, and Massachusetts. If successful, the Census Bureau would count only Americans and legal permanent residents in the census.

The state has asked the court to both prohibit the federal government from including non-citizens in the 2030 census and 2031 apportionment base tabulations, and direct authorities to redo the 2020 census and 2021 apportionment calculations to exclude such populations, and transmit the results to the state — presumably for retroactive correction.

The Constitution and Apportionment

The crux of Missouri’s case is that the Constitution is a compact between the government and the people. Representation is core to that compact. And those who are present illegally and/or temporarily are neither party to that compact nor entitled to representation under it.

Section 2 of the 14th Amendment, which sets forth the basis for apportioning House seats, instructs 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.”

Missouri presents a compelling case, based on an extensive review of legal precedent and history, that the “whole number of persons” in each state refers to a state’s “inhabitants;” that a state’s inhabitants consist of those “legally domiciled” therein; and that to be so domiciled, a person must have a “lawful intent to permanently remain” in a state, and an ability under the law to do so. Illegal aliens and temporary visa holders therefore may not be counted for purposes of apportionment.

To substantiate its view that “persons” means “inhabitants,” Missouri notes that drafts of the Constitution’s original apportionment clause — which would be modified by the 14th Amendment in 1868 to encompass freed slaves — referenced “inhabitants.” Also, the Federalist Papers indicated that the census count and apportionment figures would include “inhabitants” within each state. And every census statute passed by Congress prior to the enactment of the 14th Amendment “provided for an enumeration of the ‘inhabitants’ of the United States.”

“Although the final version of the original Clause did not use the term ‘inhabitant,’” Missouri states, “there was broad consensus that this was not a substantive change,” citing to the 1992 Franklin v. Massachusetts case.

The use of the word “inhabitant,” would have “been understood to reference and incorporate the concept of domicile,” Missouri asserts, referencing authoritative Founding-era international law writings, correspondence from John Adams, and relevant jurisprudence.

And, per relevant legal scholarship and precedent “one could only be domiciled in a place where he permanently intended to remain.” “As a matter of law,” Missouri concludes, “a person can establish domicile ‘only when his intent to remain was legal’ under the laws,” referencing the 1982 Lok v. INS case.

And since federal law prohibits illegal aliens and temporary visa holders from permanently residing in the U.S., the argument goes, they are therefore not legally domiciled, not inhabitants, and not entitled to representation through their inclusion in the census and apportionment.

Further substantiating its view, Missouri highlights that neither the executive branch nor Congress has ever interpreted Section 2 of the 14th Amendment to mandate the counting of everyone in the U.S. at a time the census is taken. Authorities have consistently excluded “foreign tourists” from census tabulation. If the distinction between such sojourners and illegal aliens is simply the duration of their trip to the U.S., or their intent to remain in the U.S., then defenders of the status quo would “provide representation even to Nazi spies who invaded Florida during World War II,” the state contends.

Missouri also challenges the relevant Census Bureau regulations enabling the counting of illegal aliens and temporary visa holders.

A Related Case

Louisiana and several other states similarly filed suit against the outgoing Biden administration, as I reported last year in RealClearInvestigations, seeking, among other things, to prohibit the Census Bureau from counting illegal aliens and temporary visa holders.

That related case is pending. The plaintiffs in that case, and the Trump administration, with which they are now litigating, had for months mutually agreed to pause the dispute while the administration worked out its policy. But last December, the litigants filed a joint status report indicating they were at loggerheads, with the states wanting to move forward with the case, and the administration effectively asking for more time.

That the Trump administration is, presumably, sympathetic to the arguments set forth by the plaintiffs in both of these cases, makes them still more intriguing.

During the first Trump administration, the president sought to exclude illegal aliens from apportionment on grounds similar to those raised by Missouri and Louisiana, only to be stymied by litigation that ran out the clock on its efforts — efforts the Biden administration unwound.

At the outset of the second Trump administration, the president rescinded the Biden administration’s directives, ostensibly reprising the Trump administration’s earlier policies. Last August, President Trump wrote in a Truth Social post that “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.”

Possible Developments

If past is prologue, that will happen only after the Supreme Court weighs in — and not only on whether illegal aliens and temporary visa holders must be excluded from the census and apportionment, but whether they may be so excluded, and if the power to exclude resides with the executive branch, the legislative branch, or both parties.

The administration may seek to settle both cases, perhaps by modifying regulations and/or taking further executive action to exclude all but citizens and lawful permanent residents from the census.

Such a resolution would not deal with Missouri’s claimed injuries from the 2020 census and 2021 apportionment process — but perhaps it would tolerate it, given it is unclear whether the courts would abide such a practically difficult and politically monumental retroactive change in the first place.

At that point, perhaps the administration’s opponents would intervene, setting its policy on a path to the Supreme Court.

Further complicating the president’s ability to do something decisive is that the next decennial census will not be completed until 2030, after Trump’s term ends. Nevertheless, much of the planning and preparation will occur during his tenure. And if the Supreme Court were to see it as incumbent upon itself to take up the relevant questions far enough in advance of the next census to ensure its timely administration, perhaps the president could solicit a favorable ruling that would minimally bind his immediate successor.

Congress should be jointly engaging in action on this front. As with the SAVE Act, it should move with all its might to pass the Equal Representation Act, legislation currently sitting in the House that would exclude non-citizens from the census.

We must resolve this matter once and for all — regardless of who benefits from it politically.

We cease to be a republic if we permit perpetual foreign interference in our election system, dilute the political power of American citizens, and fuel the systematic evisceration of our sovereignty by granting political representation to those not entitled to it.

Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.