Kobach: The Supreme Court Hearing on Excluding Illegal Aliens in Apportionment Made One Thing Clear—We Needed the Citizenship Question on the Census

Census Citizen, Non-Citizen Graphic

Monday, the Supreme Court heard the oral argument in the case of Trump v. New York, concerning President Trump’s July 2020 executive memorandum that ordered the Commerce Department to exclude illegal aliens from the census numbers to be used for congressional apportionment.

As I have written previously, the wording of Section 2 of the Fourteenth Amendment makes clear that only “inhabitants” of the country are supposed to be counted when apportioning congressional seats among the states.  However, illegal aliens have been included in apportionment in recent decades.

Including illegal aliens makes no sense.  A person who has no legal right to remain in the country has no right to be represented in Congress.  And it makes no sense to count in apportionment someone who can be deported at any moment.   Moreover, including illegal aliens has had the consequence of unfairly rewarding sanctuary states like California with additional seats in Congress and additional votes in the Electoral College—at the expense of states with fewer illegal aliens.

President Trump rightly sought to bring this practice to an end. But a group of blue states led by New York, accompanied by open-borders groups like the New York Immigration Coalition and the ACLU, sued to prevent the Trump Administration from excluding illegal aliens.  The case was placed on a fast track to the Supreme Court, with the objective of having a decision before the Commerce Department provides the final numbers to the President—which is supposed to occur by December 31.

However, this story did not begin in July.  The Trump Administration began this process in 2017 with the logical first step—considering and then ordering the restoration of a citizenship question to the census.  That question would have made it relatively easy to exclude illegal aliens from the apportionment count, depending on how the question was phrased.  But the inevitable lawsuits came; and a divided Supreme Court in June 2019 wrongly ruled that the Trump Administration didn’t follow the correct administrative steps in restoring the citizenship question.

Fast forward to yesterday’s Supreme Court hearing.  The Justices spent much of the hour-and-a-half hearing trying to determine what portion of the approximately 12 million illegal aliens in the country the Commerce Department would be able to identify by name, match against names picked up by the census, and exclude from the apportionment count.  The Acting Solicitor General of the United States, Jeffrey Wall, repeatedly told the Justices that it was too early to tell.

That’s because the Commerce Department is engaged in a difficult work-around, trying to identify illegal aliens from other databases and match those names against the census data.  This work-around would have been unnecessary if the census had collected citizenship and immigration status information in the first place.  The necessary information would already be included in the census data.

The Justices were clearly frustrated by the uncertainty surrounding this work-around.  It’s too early to say how many illegal aliens the Trump Administration will be able to match against census names and exclude.  But the Justices bear part of the blame; it was their incorrect decision last year that placed a roadblock in front of restoring the citizenship question to the census.

Nevertheless, the oral argument did reveal just how absurd the plaintiffs’ position is.  At one point, Justice Samuel Alito asked New York’s Solicitor General, Barbara Underwood, if the plaintiffs thought foreign tourists visiting the United States on valid visas should be excluded from the apportionment count.  She answered yes.  Justice Alito then asked her if foreign tourists who overstay their visas—and become illegal aliens—should be excluded from the apportionment count.  She answered that they should not be excluded.

It was a jaw-dropping moment.  So the foreigner who obeys our immigration laws while in the United States should not be counted, but the moment he disobeys the law we should count him as an inhabitant entitled to congressional representation?  The correct answer, of course, is that neither the legal foreign tourist nor the illegal alien should be counted.

The blue states that brought this case have been rewarded with great political power in Congress and in the Electoral College by encouraging illegal immigration.  They are not going to let logic or the rule of law stand in the way of holding on to that power.

Kris W. Kobach is an expert in immigration law and election fraud. He served as Kansas Secretary of State during 2011-2019.  He was a professor of constitutional law and immigration law during 1996-2011 at the University of Missouri-KC.


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