Supreme Court May Revive Trump Scheme To Exclude Undocumented Aliens From Figuring Of House Seats

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The Supreme Court took up Friday October 16 a case invalidating the Trump Administration’s scheme to exclude undocumented aliens from figuring of House seats in reapportionments.

This move represents a blow against the long-established census counting method that will massively shift House seats from Democratic to Republican states.

Trump launched the scheme on July 21. He called for a strange dual documenting by Wilbur Ross’s Commerce Department, one of the two being the normal census. But, the other being would use some still-undefined method of to project or estimate or just guess the number of undocumented immigrants. There are no questions asked by the census itself to count undocumented immigrants.

The case is named New York v. Trump. It was a bad sign that the Court took up the case and set it for argument November 30. The Court could have left this case alone. A three-judge panel said last month that the Trump scheme was illegal. The three judges included two nominated by President George W. Bush and one by President Barack Obama. It was balanced and devoted itself to an objective consideration of the legal issues.

I wrote on September 10 of their decision. It was unanimous. Its 86 pages went thoroughly and deeply into the history of the census. This was one of the rare three-judge district courts (they used to be more frequently convened for issues of the constitutionality of statutes.) The natural Supreme Court response would have been to summarily affirm, recognizing how far out of line Trump’s scheme was.

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Under the Trump scheme, the states that would most likely lose House seats in reapportionment would be those with relatively larger populations of undocumented aliens: California, Texas and New Jersey. The states that would gain seats would be states, like Indiana, with relatively greater citizen populations. Although the correlation is not perfect, the states losing House seats would be more Democratic, and the states gaining House seats would be more Republican.

This might be one of the first cases argued, decided and issued with Amy Coney Barrett. What kind of difference would she make, if, say, a conservative majority reviving the Trump scheme let her write the opinion? As her nomination hearings fully addressed, her approach to statutory interpretation is Scalia’s approach, a hard-edged textualism.  

Pushing that approach to its limit, Barrett would discard all the compelling history of the census analyzed by the balanced three-judge panel. Instead, she would look at various sources, relevant and irrelevant, to show that the words “persons” has covered a number of different meanings. With the freedom of action thusly created, she would in short order decide that President Trump could do what he liked, regardless of two centuries of history.

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