This article is the final entry in a symposium previewing Trump versus New York.
Nina Perales is the vice president of litigation for the Mexican-American Legal Protection and Education Fund and a legal advisor in La Union del Pueblo Entero v Trump, a related case currently pending in the US District Court for the Maryland District.
President Donald Trump’s July 2020 memorandum, “Exclusion of Illegal Aliens from the Post-2020 Census split,” followed his unsuccessful attempt to add a citizenship question to the ten-year census questionnaire. After the Supreme Court blocked the census citizenship issue in June 2019, Trump asked the Census Bureau to compile a citizenship record using other government records. When it became clear that the Census Bureau would not submit this record until the end of his first term, Trump switched to a third plan – the apportionment memorandum.
The apportionment memorandum allows Trump to shift political power across the country while he’s still in office – by reallocating seats in the U.S. House of Representatives in a process that begins in December 2020.
The memorandum goes hand in hand with its predecessors – the issue of citizenship of the census and the record of citizenship of the census. What the three initiatives have in common is best described by the late Republican strategist Thomas Hofeller, who stated that excluding non-US citizens from the division was politically “beneficial to … non-Hispanic whites”.
The time advantage granted by the apportionment memorandum is, however, affected by the illegality of the memorandum. Requiring the Secretary of Commerce to deviate from the census data to produce a second set of population figures and the president’s plan to report those non-census figures to Congress as a split number violate two federal laws as well as the U.S. Constitution.
Article 1.2 of the Constitution requires an “actual enumeration” of the population every 10 years “in such a way as [Congress] should by law directly ”, so that congress representatives“ can be divided among the various states ”. Section 2 of the 14th Amendment continues: “The representatives are divided among the various states according to their number, counting the total number of persons in each state[.]”
As part of its responsibility to determine “how” the census should be conducted, Congress enacted two laws that require partition numbers (1) to be based on ten-year census data and (2) to include the total number of people in each state .
13 USC § 141 (b) provides: “The table of the total population … as required for the division of representatives in Congress … is … by the [Commerce] Secretary to the President of the United States. “2 USC § 2a provides:”[T]The President sends Congress a statement on the total number of people in each state. . . as stated under the. . . ten year census[.]Trump’s apportionment memorandum violates both laws.
The Trump administration’s argument that “whole persons” mean “residents” does not save the apportionment memorandum. The term “resident” clearly means a person who lives in a specific location. People without authorized immigration status live in the homes they were counted in in the 2020 census. In fact, the typical adult immigrant lacking authorized immigration status has lived in the United States for 15 years, making it difficult to pretend that unauthorized individuals do not have a “permanent bond.”[s]To their communities. The rules of the Census Bureau also require that these immigrants, along with everyone else, be “counted at their habitual residence, where they live and sleep most of the time”.
However, the apportionment memorandum excludes individuals who, while not enjoying the rights of US citizens and authorized immigrants, are undoubtedly “whole persons” residing in the United States. In this way, the memorandum raises the specter of the infamous three-fifths rule, according to which our Constitution – prior to the 14th Amendment – required that enslaved persons be counted as three-fifths of the free persons for the purposes of division in Congress, thereby it increases the political power of the slavery states.
The apportionment memorandum not only illegally excludes immigrants living in the country without a permit from the apportionment census, but also uses them as a stalking horse to mask its bare political goal – to reduce the representation of all people living in Congress in Congress and on the electoral college States with the largest Latino populations.
The memorandum is written in the language of the enforcement of immigration laws (the apportionment memorandum speaks of individuals who are “not in legal immigration status” and who promote “compliance with the law”). It highlights California, claiming that its residents should properly lose “two or more” three “congressional seats. If California loses “two or three” seats in Congress, many millions of undocumented people will also lose representation.
Although not mentioned in the memorandum, Texas and Florida follow California on the list of undocumented states with large populations and are most likely to lose representation in Congress if Trump is allowed to implement the new apportionment policy.
Removing the representation from Texas, California and Florida does not penalize them based on their political affiliation (at least based on the 2020 general election results). What these states have in common is something else; They contain the largest Latino populations in the United States. Together they contain 16.6 million Latinos eligible to vote – more than half of all Latinos eligible to vote in the United States
Latinos are the largest minority in the United States today, and the Latino population is growing rapidly. Likewise, Asian Americans are the fastest growing minority in the United States. The state with the largest Asian-American population and the largest Latino population is (wait for it) California.
To add insult to injury at the violation, there is simply no way of telling how many people without “legal immigration status” are living in each state, which means that the implementation of the apportionment memorandum (and the resulting damage to states) will be based on speculation. There is no number of individuals lacking immigration status to deduct from the total state population provided by the Census Bureau. No other record, either individually or collectively, accurately captures the lack of immigration status for those living in the United States. The apportionment memorandum doesn’t even define who is “not in legal immigrant status,” so the Census Bureau has no guidance on how to classify the hundreds of thousands of people in the US who are between two statuses, have transitional status, or are neither documented nor documented are documented.
Even attempting to count a subset of undocumented immigrants such as those currently held in federal immigration detention will be both biased and inaccurate. Immigrants are not detained in their state of residence and immigration detention centers are not evenly distributed across the country. Texas, home to most of the immigration and customs detention centers and detained immigrants, will be the big loser in any attempt to exclude detained immigrants from the division in Congress.
It doesn’t take much for a state to lose a seat in Congress. According to the 2000 census, North Carolina won the 435th seat in the House of Representatives after beating Utah by 856 people. In 2010, North Carolina missed a new seat of nearly 15,800, and the seat went to Minnesota.
The apportionment memorandum’s attempt to manipulate the census figures, coupled with the fact that it cannot be implemented with any degree of accuracy, shows the memorandum for what it is: a bare attempt to represent the Congress and the national Shift political power away from states with large states to Latino populations, and secure this power theft for the next decade.
Nina Perales, Symposium: An Undisguised Attempt to Turn Power From Latino Voters,
SCOTUSblog (November 28, 2020, 1:53 p.m.), https://www.scotusblog.com/2020/11/symposium-a-not-at-all-disguised-attempt-to-shift-power-away-from – latino voters /