Trump’s second attempt to rig the Census betrays the Constitution and conservatism

Trump Abandons Originalist Principles


James Srebnick '21

This is the second time President Trump has tried to contort the Census process for political ends

Going against true Conservative and Originalist thought, President Trump, for the second time, is attempting to use the census to shift legislative power to the right by excluding undocumented immigrants.

In July 2020 President Trump sent Secretary of Commerce Wilbur Ross a memorandum asking for two numbers pertaining to each state: the total population as determined by the 2020 census, and the total population subtracting⁠—“to the extent practicable”⁠—people who are living in the country without authorization (undocumented immigrants). President Trump announced that the second number would be used for the apportionment of seats in Congress. Numerous states sued, and on Monday, Nov. 30, the Supreme Court heard the oral arguments.

The effects of this landmark case, however, will ripple beyond the distribution of House seats. The Census affects how over 500 billion dollars in federal funding is distributed among state and local governments. Cities with the largest immigrant populations (often Democrat-controlled) will see significantly fewer federal dollars.

The loss of funding would affect everything from education to public transportation to even healthcare. In cities such as Los Angeles, New York, and even Miami, the funding is crucial to maintaining a functioning system.

But President Trump doesn’t care about fairness, human lives, or even conservative principles. Trump only cares about power.

Numerous originalist scholars have concluded that undocumented immigrants who have established a form of residence and plan to stay should not be excluded from the count, basing the argument on the 5th and 14th amendments.

Article I Section II of the Constitution requires that an enumeration of persons “shall be made every subsequent Term of ten Years.” The count, among other data points, provides legislators and citizens with a sea of information⁠—which, as James Madison, the champion of the Census, explains, allows them to “rest their arguments on facts, instead of assertions and conjectures.”

The 14th Amendment modified this section of the Constitution to repeal the infamous Three-Fifths Clause. Section 2 of the amendment specifies 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.”

The main dispute concerns the meaning of the word “persons.” Our founders understood the word “persons” to be quite encompassing.

In the 14th amendment, the founders intended to include inhabitants without rights (women and African-Americans) in the census. Even so, had the word “persons” inherently disbarred foreign citizens with a devotion to their separate government (which one could argue of undocumented immigrants), our founders would not have specifically included a clause which excluded “Indians not taxed.” It would be redundant.

The Supreme Court even held four years ago in Evenwel v. Abbott, 587 U.S. (2016) that in the 14th amendment, “persons” refers to the “total population,” including immigrants, “whatever… [their] status under the immigration laws.”

The judicial precedent overwhelmingly contradicts the merits of President Trump’s case (although I doubt Trump himself understands it). The Supreme Court repeatedly held that the due process clause of the 5th amendment, which states that “No person shall… be deprived of life, liberty, or property, without due process of law” protects all people⁠—immigrants and citizens.

When the Court began hearing the oral arguments, surprisingly, Solicitor General Jeffery Wall, on behalf of the administration, argued not about the merits of the case, but its judicial standing. Wall claimed that because there is “substantial uncertainty” as to whether the apportionment would be affected by this change to the census in the first place (which would mean no real damages), the case should not be heard.

The Justices seemed to be in concurrence when the focus of their questions became whether the case should be heard later if damages manifest at all.

On the other side, New York Solicitor General Barbara Underwood claimed that there is enough certainty to determine that the apportionment of states would be affected by the subtraction of the illegal population.

Justice Kavanaugh seemed most in favor of General Wall’s position, observing two doctrines that could support Wall’s case: the standing doctrine, which requires a controversy involving a concrete injury, and the ripeness doctrine, which prohibits lawsuits that are based on hypothetical future harm.

If the court decides in favor of Trump, it will be because the parties have no standing, and we will be seeing another SCOTUS argument in the near future which will concern the constitutionality, not the procedure.

This issue is just another struggle for partisan power. Republicans don’t want undocumented immigrants to be counted because it gives states and localities with fewer immigrants, which often lean Republican, less power. Democrats want them to be counted because the apportionment will favor historically Democratic states.

George Will said it best in a recent column: “Republicans generally say … that the Constitution should be construed according to the text’s original meaning. Forced to choose between power and principle, well . . .”

In the Trump era, they have demonstrated clearly which option they will choose.