Census Shenanigans

[yossarian22c]

https://www.npr.org/2020/07/21/892340508/with-no-final-say-trump-wants-to-change-who-counts-for-dividing-up-congress-seat
https://www.npr.org/2020/07/21/892340508/with-no-final-say-trump-wants-to-change-who-counts-for-dividing-up-congress-seat

The memo instructs Commerce Secretary Wilbur Ross, who oversees the Commerce Department, to include in the legally required report of census results to the president "information permitting the President, to the extent practicable" to leave out the number of immigrants living in the U.S. without authorization from the apportionment count.

Constitution says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State...

I'm interested in seeing how the conservatives who don't adhere to the living document theory defend this policy by somehow arguing undocumented immigrants are "non-persons."

[TheDeamon]

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

14th Amendment, section 2:

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(18) 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(18) years of age in such State.

Made some strike through entries to reflect the voting franchise subsequently being granted to 18-year-olds, and members of both genders.

It presents an interesting constitutional argument and interpretation game that can be played on this.

The 14th Amendment seems to be clearly talking about enumerating citizens and other persons (Indians not taxed) with a legal presence in the country. Article  1, section 2 also seems to be assuming that as well. As prior to about 50 years ago, the idea that the Government would knowingly and willfully allow a sufficiently large population of people to accumulate within its borders who are neither citizens, or legally authorized to be there as to impact the apportionment of congressional seats to be completely mind-boggling.

It probably would have boggled the minds of many people even as late as the early 1990's shortly after the Reagan Amnesty for many illegals.

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The argument could be cut in both directions on that. A very literal interpretation would likely say illegals get counted. But once you start bringing intent into the mix, that's not so clear. Going by recent SCotUS rulings however, Trump would likely lose that fight in court.

But there is "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(18) years of age in such State" to contend with in both literal readings and intent.

An argument CAN be made that provisions for "the basis of representation therein shall be reduced in the proportion which the number of such" in the 14th Amendment could be applied with regard to non-citizens in the country, as it makes clear that Congressional representation is supposed to be proportional to the number of (potential) voters in an area(unless otherwise explicitly exempted by the 14th amendment).

If you are not a citizen(or have "a pathway to citizenship"), you simply don't count for the purpose of apportionment. (Because the 14th Amendment assumed that the United States from then on would only have Native Americans, Citizens, and potential citizens within its borders in any kind of substantial number.

Edit to add: While I think it is an argument that can be made, and there possibly are a few others as well, it doesn't mean I think they are particularly strong ones. But on the same token, I guess I'm getting a taste of how the Abolitionists felt on the matter of enumerating the slaves during the Constitutional Convention.

[TheDeamon]

In any case, the illegal immigrant situation in general is abhorrent, and it should never have reached the point of being bad enough to have constitutional implications.

[cherrypoptart]

Does the Constitution say you don't count tourists for the Census? That you cannot count them?

[TheDrake]

Does the Constitution say you don't count tourists for the Census? That you cannot count them?

As you know, the census asks where you live. Tourists don't live here. Legal immigrants and illegal residents count. Always have, always should. They are paying taxes of many kinds. They require services of many kinds.

[TheDeamon]

Does the Constitution say you don't count tourists for the Census? That you cannot count them?

As you know, the census asks where you live. Tourists don't live here. Legal immigrants and illegal residents count. Always have, always should. They are paying taxes of many kinds. They require services of many kinds.

That's the modern use of the Census, that doesn't directly relate to the constitutional use for the Census. And it should be noted that Trump's Executive Order specifically restricted enumerations for the purpose of apportionment, so the other head counting can still process and be tallied for other purposes as per normal.

But likewise, in the modern era, we have large numbers of "snow birds," something which likely would have completely blown the minds of the Founding Fathers 200+ years ago, sure they might have heard about a very small number of people who did something comparable even back then, but they were exceptions more than anything else.

[cherrypoptart]

Exactly. There is a difference between what the Constitution says and what the Census Bureau does. The Constitution doesn't explicitly exempt tourists from the Census just like it doesn't explicitly exempt people living here illegally.

[TheDrake]

Exactly. There is a difference between what the Constitution says and what the Census Bureau does. The Constitution doesn't explicitly exempt tourists from the Census just like it doesn't explicitly exempt people living here illegally.

I'm convinced. Any tourist who wants to submit a census form, cool. We know that wouldn't happen, wouldn't move the needle, and wouldn't be a problem.

[cherrypoptart]

That's one option. A little late now though. Have we been violating the Constitution all this time by not counting tourists for apportionment? Not likely. The Founding Fathers obviously suffered from a lack of imagination as far as both tourists and people in the country illegally being the huge problem it's become. The other option besides counting tourists for the census and apportionment is the Trump plan which is perfectly reasonable.

Opposing it is the Democrat Party literally colluding with foreigners to influence and manipulate American elections.

[cherrypoptart]

Well the census is in the news again.

And going back to counting tourists for just a moment, we should also remember that hundreds of thousands if not millions of the illegals here came on tourist visas and just never left. An argument could be made that they are technically still just tourists.


But if people don't like the tourist angle then what about prisoners of war? If we captured thousands of prisoners of war and had them in custody for years until the war is over then are they counted in the census?

They would actually have more legal status than illegals and most of them could very well be guilty of no crimes at all. Just regular soldiers, sailors, and airmen.

What does our Constitution say about that?

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Do we have any predictions on how the Supreme Court will actually rule on this issue? It should be coming up pretty soon.

I'm going to go out on a limb and guess that they will rule the way I want them to rule. Legal immigrants should be counted in the census but people in America illegally should not. They are invaders, not immigrants.

Which brings up another possibility too for those insisting that everyone living in America needs to be counted in the census.

What about straight out invaders? If we were invaded by a hostile army should they be counted in the census? Not to name any names but just to pull a random one out of a hat, if China invaded Hawaii and put ten million soldiers there and they stayed there for twenty five years as a hostile occupation force and then after that we gave them the boot and took it back over, during those two census periods should their ten million soldiers be counted in our census and give Hawaii more Representation in the House? Sure, that's admittedly some big time argumentum ad absurdum, but it makes the point that it's not necessarily true that everyone living in America at the time of the census should be counted for apportionment, and that's a case in which arguing that they should seems like it would be even more absurd.

That may seem ridiculous and hopefully it always will be just hypothetical but it's still an important stop for the logic train because it illustrates the point that it doesn't make necessarily make sense to count everyone living in America for the census. There are exceptions.

We'll see what the Supreme Court says soon enough. My guess is it will be 5-4 in favor of Trump with Roberts as usual dissenting in some oddball way that makes absolutely no sense at all while the total leftists on the Court do their usual thing as well, ruling the way they feel like ruling just because they feel like it but unlike Roberts at least their approach will be consistent. The only consistency to Roberts in most of these types of cases is his total commitment to absurdity.

[TheDeamon]

It's going to come to how they feel like reading the 14th Amendment in the legal context of Apportionment of Legislative Seats in the House when weighed against both Sanctuary Cities, "intent" for whatever that matters to them, and the existence of a category of resident which didn't exist at the time of the 14th Amendment being drafted.

14th Amendment, section 2:

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(18) 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(18) years of age in such State.

Made some strike through entries to reflect the voting franchise subsequently being granted to 18-year-olds, and members of both genders.

The illegal aliens are not "Indians not taxed" although a number of them do not pay any taxes, although others do pay federal and state taxes, which makes that a nightmare. Illegal aliens are not citizens, but they are residents, except they're also either arguably in a state of rebellion(or those that harbor them are), invasion, or in a state of "criminal presence."  Except the 14th Amendment allows for fully enumerating such persons, it only mentions them as person who could be disenfranchised from voting.

So one reading would say 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" makes it plain as day illegal immigrants count.

Except we can go back to the concluding sentence where "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(18) years of age in such State" is brought into play.

Where in the light of women's suffrage, and blacks being given the right to vote, the "counting the whole number of persons in each state" in the context of representation should now read as "the counting of persons who hold, may hold, or have lost a right to vote as a citizen of the United States." Enumeration of others outside of that scope is capable of being authorized by Congress, and it has, for use in other things. But so far as the 14th Amendment in concerned with Enumeration, it's wanting to know about Citizens or people "on the pathway towards citizenship" (legal immigrants) whether or not they pursue it. Illegal Immigrants are not on that pathway at this time.

Although Biden could potentially put them on that path on January 20th, 2021 if so inclined.

[Wayward Son]

Two problems with not counting illegal aliens in the census.

1.  In all previous censuses, illegal residents were counted.  I have not heard of any census that excluded or removed illegal residents from the totals.  Which means that this census would have different criteria from all the other censuses in the past.

2.  In this census, illegal residents were counted, too, but were not distinguished as such, since the courts blocked any such question from being asked.  So any reduction of the count would be based on an estimate of how many illegal residents expected in an area, AKA a wild-@ss guess.

So I don't really see SCOTUS agreeing to make this census number questionable and unprecedented based on some numbers pulled out of the Administration's behind.

[TheDeamon]

Two problems with not counting illegal aliens in the census.

1.  In all previous censuses, illegal residents were counted.  I have not heard of any census that excluded or removed illegal residents from the totals.  Which means that this census would have different criteria from all the other censuses in the past.

To my recall, it wouldn't be the first time that the court has deemed something that had been in practice for decades to be unconstitutional. The criteria you give is invalid on its face. What the court would instead be looking at is prior legal precedent re: legislation and court rulings on the matter and how they relate to the Constitution. If this is the first time this specific matter has approached the court, there is no "precedent" to go against. It just means that nobody challenged it on the right legal grounds until now. You need only look at the ruling regarding the Indian Reservations in Oklahoma where in one ruling, they just effectively invalidated thousands of court verdicts accrued over the course of just over a century.

So "but we've been doing it this way for decades" doesn't fly as a legal defense.

2.  In this census, illegal residents were counted, too, but were not distinguished as such, since the courts blocked any such question from being asked.  So any reduction of the count would be based on an estimate of how many illegal residents expected in an area, AKA a wild-@ss guess.

So I don't really see SCOTUS agreeing to make this census number questionable and unprecedented based on some numbers pulled out of the Administration's behind.

Now this part is valid. So in that regard you end up with a different kind of "split decision" although I'd expect the court to split on partisan lines regardless, I expect the "Democrat Justices" will rule for counting everyone regardless of their legal status.

What you may end up with is a ruling where they determine that future apportionments will need to be conducted according to the new legal standard. But as the most recent mandated Census has just concluded, Congress cannot act on the ruling until another Census is carried out. Something the courts oh so conveniently are not going to order.

This also means that Congress then has a clock ticking saying the Democrats have 9 years to sort out the Illegal Immigration issue (and get Republicans on board) before certain states they happen to control are faced with a significant loss of federal political power should nothing else change between now and then.

Edit: Of course, I guess the Republicans then have yet another feather they can pull out of their hat at that point:
Article 1, section 2 has this provision on the Census: "The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. "

"Within every subsequent term of ten years" means they can direct a Census to occur more frequently than once every 10 years. So if the Republcians take/hold Congress in 2024 and retake the White House they could order a census for 2026 if so inclined, which would mean they could have a map even more favorable to them in the 2028 presidential race.

[yossarian22c]

Illegal alien counting don't uniformly benefit democratically leaning states. Texas and Florida are likely to be hurt along with California and New York. Other states likely to be hurt are states with more agricultural (rural/southern). So there will be winners and losers based off the decision but I don't think the net benefit to one party or the other is quite as clear as its being made out to be. It may modestly benefit Republicans but it isn't an exclusive benefit to them.

[TheDeamon]

Illegal alien counting don't uniformly benefit democratically leaning states. Texas and Florida are likely to be hurt along with California and New York. Other states likely to be hurt are states with more agricultural (rural/southern). So there will be winners and losers based off the decision but I don't think the net benefit to one party or the other is quite as clear as its being made out to be. It may modestly benefit Republicans but it isn't an exclusive benefit to them.

As a proportion of the overall population, California, New York, Illinois, Florida, and Texas are probably the only states big enough to have enough illegals present to lose House Seats over the matter. From there it becomes a question of how the "rebalanced population" would play out in distributing those seats across the nation. It may even be that after that initial re-balance, another state or two loses a seat as well, but in general I'd expect the states most likely to gain seats as a consequence would trend towards rural, while the ones most likely to lose one would be more urban.

After all, with how many people need to be present in a state in order to warrant an additional House Seat in the first place, that makes it almost exclusively the domain of the urban/large states.

Looks like Pew did some forecasting this summer:
https://www.pewresearch.org/fact-tank/2020/07/24/how-removing-unauthorized-immigrants-from-census-statistics-could-affect-house-reapportionment/

In which they project Florida, Texas and Cali would lose a house seat to large illegal populations. Nobody else would be impacted. (Texas and Florida are still projected to gain seats regardless)

Those three seats would in turn allow (based on their projections) Alabama, Minnesota, and Ohio to retain House Seats they're likely to lose otherwise.

So in all reality, based on the 2020 presidential race results, it wouldn't make a meaningful difference. 2 Trump EC votes move to another state that voted Trump, and 1 Biden EC vote moves to another state that voted Biden, although Minnesota is capable of being flipped, unlike Cali while Alabama would be more difficult to flip than Texas. Ohio vs Florida on the ability to flip is a little more up in the air.