Forum: Trump’s census policy is fundamentally fair and legal-SCOTUSblog


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This article is part of an article forum Preview Trump v. New York.

Hans von Spakovsky (Hans von Spakovsky) is a senior legal researcher at the Institute of Constitutional Government of the Heritage Foundation and the manager of the estate election law reform program.

in Trump v. New York The Supreme Court should only examine constitutional and legal issues: whether President Donald Trump is within his legal authority to direct non-citizens of the country to be illegally excluded from the population allocated by Congress. Of course, policy issues are very important. What the President did was basically fair. Moreover, according to the Supreme Court’s precedent, Franklin v. Massachusetts, Trump also has the right to do the same.

The first is policy issues and equity issues. In the past four years, the political arena has been flooded with Russian claims to “interfere” in our elections. Special counsel Robert Mueller actually sued many Russians for participating in these efforts. If you want to ask members of the public whether they think that any Russian indicted should be allowed to make a political donation to a federal candidate-whether it is Trump or a person running for Congress-whether he is illegal here, I There is no doubt that they will say “no” together.

If you ask if Russia should be allowed to be a candidate for Congress, you will receive the same firm answer. Moreover, if you ask Russians whether they should be able to vote in federal elections, including parliamentary elections, the answer is still yes.

So why does New York State or any other democratically controlled state and local government that questioned the actions of the New York State President believe that Russians (and other non-citizens) who are not legally here should be included in the population used to distribute political power The power of the House of Representatives? There is only one reason: to distort the image of the House of Representatives and give more members of Congress (and more political influence) to states with large illegal immigrants, rather than members of Congress who they are entitled to receive based on the number of their citizens. This gives the states an incentive to obstruct the federal immigration laws in order to increase the number of illegal immigrants living in these states.

A district court composed of three judges issued a summary judgment on New York and issued a permanent injunction prohibiting the Department of Commerce, the Census Bureau and all other government agencies from implementing the memorandum signed by Trump on July 21, 2020. It is also wrong according to the law and has been wrongly applied Franklin Decided.

According to Section 2 of the 14th Amendment, “Representatives shall be distributed among several countries according to their respective numbers, and the total number of people in each country shall be calculated.” According to 13 USC §141(a), the Secretary of Commerce is given statutory The power can conduct a census “in the format and content he determined” and then send the report to the president.

Pursuant to Section 2a(a) of Article 2 of the United States Code, the President is instructed to send to Congress “a statement stating the total number of people in each state”, which is determined by the decennial census and “each state has the right to The number of representatives obtained is…decided”. Through a method called equal proportions. In a memorandum on July 21, Trump specifically instructed the secretary that, for distribution purposes, “should be within the maximum possible range and consistent with the discretionary power entrusted to the executive branch” to remove non-citizens living in the country illegally. Exclude from the basic population.

As the Supreme Court said FranklinThe president’s role in applying the “equal ratio” formula to the basic population is ministerial.However, his role in determining what the basic population is (that is, the number the formula will apply) is Do not Ministerial. In fact, the court pointed out that Section 2a(a) of Title 2 of the United States Code “does not weaken the power of the president to direct the secretary to make policy judgments,” regarding the conduct of the census.

As the Ministry of Justice has convincingly pointed out in its summary, such a “judgment” is “whether a person should be regarded as a “resident” or “resident” of a country, which is a “disguise” given to the Constitution in history. “. And the legal term “person” in each state.” In addition, the courts Franklin The key word “people in every state” used in the constitution and regulations is “[s] Not only does it actually exist, it has been widely used to include loyalty or lasting connection to a certain place. “

Non-citizens (such as tourists or other temporary visitors) who live here illegally have no political loyalty to any state or federal government. They cannot draft duties as a jury or perform military service (if we still have a draft) because they are politically loyal to their home country as their citizens. In addition, because they exist illegally in the country, they have no “lasting bond” with any state. They can be picked up, detained by federal authorities at any time, and then removed from the United States.

Therefore, excluding individuals who have no allegiance or lasting relationship with the state is entirely within the precedent established by the court Franklin – It is completely within the precedent set by previous censuses, and censuses always exclude certain people. In this case, the challenger has no dispute. For example, the “residence standards” set by the Census Bureau in 2018 for the 2020 census (following the same rules used in previous censuses) do not include non-citizens who legally “visit the United States”. For example, vacation or business trip. “If we can exclude non-citizens who live here temporarily and legally from the census, why can’t we exclude non-citizens who also live here illegally and illegally-that is, until they are arrested and removed?

The district court’s analysis was not fully implemented in accordance with correct regulations, Franklin precedent. For example, the court held that the president’s memorandum would somehow “contain” participation in the census. In doing so, there is no evidence to support the conclusion. But even if this is true, it doesn’t matter. If the president has the right to determine the population used for distribution purposes, then no chilling effect can be used to prevent him from exercising his legal power.

The court also held that the president’s role in making this decision was actually ministerial, and he could not instruct the secretary to report a population different from the total population determined by the census for distribution purposes.But this is the same as the Supreme Court Franklin The president can make policy judgments about the population that will be used in the distribution formula. It also conveniently ignores the fact that the Census Bureau has long excluded other “citizens”, such as non-citizens in the country as tourists or for commercial purposes.

In a representative democratic republic, including non-citizens who live here illegally is meaningless in a representative democratic republic. This is more meaningful than allowing them to vote, make political donations, or run for office.And as Franklin The case shows that, as pointed out in the persuasive amicus curiae book proposed by constitutional scholars John Eastman and John S. Baker, the original meaning of the apportionment clause in the Constitution and Historically, the president has every right to exclude these non-citizens. Eastman and Baker pointed out that including non-citizens who cannot legally establish a place of residence would be inconsistent with the Constitution because they are not “residents,” the term used in the Constitutional Convention. Federalist Thesis, And carry out census instructions based on most of our history to find out what needs to be counted. “(Baker elaborated on SCOTUSblog’s argument in the article. Previous entry At this seminar. )

The Supreme Court should adopt a method of apportionment calculation, including non-citizens and non-governmental organizations without legal status, overturn the opinions of lower courts, dissolve injunctions, prevent the dilution of citizens’ votes, and unfairly distort the distribution of political power among states.Not loyal to our country

Published on Trump v. New York, Featured, Seminar before Trump v. New York Oral Argument

Recommended citation:
Hans von Spakowski,
Forum: Trump’s census policy is fundamentally fair and legally reasonable,
SCOTUS blog (November 25, 2020, 12:45 pm), https://www.scotusblog.com/2020/11/symposium-trumps-census-policy-is-both-fundamentally-fair-and-legally-sound/


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