RealClearInvestigations's Benjamin Weingarten has an excellent piece on an upcoming ruling expected from the Supreme Court in early July on whether illegal aliens should be counted in the Census.
He writes:
Following a years-long surge in illegal immigration, the Trump administration is poised to challenge a longstanding but legally fraught practice: counting illegal aliens in the U.S. census.
President Trump tried to end the practice during his first term, but President Biden overturned his predecessor’s policy before it was implemented. Now, buoyed by red state attorneys general and Republican legislators, the second Trump administration is determined “to clean up the census and make sure that illegal aliens are not counted,” White House Deputy Chief of Staff for Policy Stephen Miller said last month.
What's at issue is congressional apportionment, and with as many as 30 million illegals in the country, courtesy of Joe Biden, illegals are responsible for a lot of congressional seats in Congress, even if they don't vote.
Naturally, they are Democrat seats. California, for one, has many so-called "dead" congressional districts which sport voter turnout rates of around nine percent, all concentrated in areas with huge numbers of illegal immigrants. Southern California has many such areas and it's creepy stuff when one considers how much power many of these elected representatives have, not just in Congress but also in the statehouses. Illegal or not, their populations all get congressional seats, same as areas that enforce immigration law and have few illegal immigrants. California would lose three congressional seats if illegals ceased to be counted, while states such as Missouri and Ohio would actually gain them, Weingarten's piece notes.
Weingarten noted that Trump tried to stop this obvious problem of America effectively being ruled by people whose constituents aren't citizens, and had a case dismissed in the Supreme Court in 2020 on the grounds that the Trump administration had no standing after its policy had been challenged by leftists. The Court also ruled against the Trump administration in 2019 when it sought to add a citizenship question to the 2020 Census, claiming its reasons given were "contrived."
This time, though, is likely to be different.
Aside from the measurably altered size of the population, where so many millions of illegals have been admitted that the act has changed the demographics of the U.S., Weingarten points out that Trump's argument this time are more direct -- focusing on what a "person" amounts to in the Constitution, citing numerous precedents.
Critics contend the government’s powers come from “We the people” – citizens or eligible voters – a government established before tens of millions of migrants resided in the country illegally. They also say the practice dilutes the representation of American citizens while incentivizing localities to promote illegal immigration.
Weingarten also notes this statement from heavyweight constitutional legal scholar John Eastman:
In testimony at the Democrat-led July 2020 House Oversight Committee hearing on the Trump memorandum, Republicans tabbed the head of the Claremont Institute’s Center for Constitutional Jurisprudence, John Eastman, to defend it. The conservative legal scholar, much-maligned by the left for the counsel he provided President Trump regarding challenging the 2020 election, recently told RealClearInvestigations that the Declaration of Independence’s “consent principle” – the concept that government derives its power from the American people – “compels that only citizens be counted for purposes of reapportionment,” and that the principle “is actually codified in the Constitution by excluding ‘Indians not taxed.’” In Eastman’s view, that language signifies that the founders sought to omit “those who are not part of our political community, from the apportionment for representation.”
Weingarten didn't say what the Trump argument was going to be in July but he probably brought up that passage because he was hearing potential things that might be delivered to the Court. Those arguments might be harder for them to dismiss, at least if they wanted to remain credible on the Constitution.
More important, Weingarten said that if the Court dismissed Trump on the matter yet again, Trump had "backup" as numerous states had cases of their own, arguing that because California had so many seats representing majority-illegal districts, their own states had fewer as a result, because congressional seats are finite.
Three days before Trump’s second inauguration, Louisiana, Kansas, Ohio, and West Virginia sued the Commerce Department, arguing that its prevailing practice of counting foreigners including illegal aliens at their place of “‘usual residence…’ robb[ed] the people of the Plaintiff States of their rightful share of political representation, while systematically redistributing political power to states with high numbers of illegal aliens and nonimmigrant aliens.”
They want the federal court, among other things, to vacate this “Residence Rule” to the extent it requires the Census Bureau to “include illegal aliens and nonimmigrant aliens in the apportionment base.” And they want to require the Census Bureau to include questions on the survey about citizenship, including one to determine whether non-citizen respondents are lawful permanent residents.
Which looks like a pretty strong case to me. Leftists have argued in the past that illegals must be included in the Census based on the copious amounts of government services they require, such as free education. The economic argument took precedence over the congressional representation argument.
But the states' case turns some of that rationale on its head, pointing out that they would have had that representation in Washington had the presence of illegals not taken its away from them.
Trump advisor Miller notes that the best way to solve this is to get all the illegal out of there so it's not an issue at all. But since that is all but impossible, taking away the incentive to bring in more illegals in order to amass more congressional seats and power is the best course of action.
Which points to the last and final resort of the Trump team, to enforce the heck out of districts are so loaded with illegals congressional seats are the result. This certainly would mesh with the Trump administration's policy of targeting sanctuary cities and states. If the Supreme Court can't find any justification for representatives to represent actual citizens, then enforcement will go have to go on steam roller.
Maybe Democrats can think about whether they'd like that scenario, the best thing for them is to remain quiet and not challenge Trump on the Census issue. But they won't. And they will get what they get, none of it good news for them.
Image: CBP via Flickr // U.S. government work