Is this some of the advice on “how to violate the law” that war criminal John Yoo is giving to Donald Trump?
After losing in the U.S. Supreme Court last year to add a citizenship question to the 2020 Census, Donald Trump is back today trying to exclude non-citizens from the census count for purposes of congressional reapportionment next year, in direct defiance of Section 2 of the 14h Amendment: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State …”, not just citizens.
President Trump on Tuesday issued an order that blocks undocumented immigrants from being counted in the 2020 census for the purpose of allocating congressional representation.
The order, which immediately prompted legal challenges, amounts to something of a workaround for Trump after the Supreme Court last year blocked the administration from adding a citizenship question to the decennial survey.
The rationale for the memo rests on the argument that the president has final say over transmitting the final census report to Congress and that the Constitution does not explicitly define which persons must be included in determining apportionment.
“The whole number of persons in each state…” That’s clear and explicit.
“The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status,” the order states. “Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.
Oh, now this sounds like white nationalist presidential advisor Stephen Miller, for sure. This language is borrowed directly from the anti-immigrant organization Federation for American Immigration Reform.
The order implicitly calls out California — a state represented overwhelmingly by Democrats in Congress — in making the argument for discounting undocumented immigrants, noting that “one State is home to more than 2.2 million illegal aliens.”
“Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated,” the order states.
In a statement, Trump framed the memo as an effort to push back on “the radical left,” an indication he believes it will appeal to his base of supporters ahead of November’s election — the cult followers of the personality cult of Donald Trump.
“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,'” [said the last Confederate president of the United States]. “But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.”
Trump is dispensing with the coded racist dog whistle, and is going right to the racist bullhorn: “only white people are citizens and should be counted.”
By the way, Trump also threatened to veto the National Defense Authorization Act today if it includes a provision to remove the names of Confederate traitors from U.S. military bases. There are 10 Army bases around the United States, all of which are located in Southern states, named for Confederate military officers: Fort Lee, Fort Hood, Fort Benning, Fort Gordon, Fort Bragg, Fort Polk, Fort Pickett, Fort A.P. Hill, Fort Rucker and Camp Beauregard.
Trump is making it clear that his “base” voters are fringe Neo-Confederate white supremacists.
Rep. Tony Cárdenas (D-Calif.), head of the Congressional Hispanic Caucus’s campaign arm, called Trump a racist and said the order is a distraction.
“Trump’s strategy to scare immigrants from taking part in the Census is unlawful; it will not stand in the courts and he knows it. This executive order is the action of a racist, misguided, and troubled president who continues to make unconstitutional attacks on hard-working immigrants in this country to distract from his failure as a leader,” said Cárdenas.
It’s unclear how the Trump administration would discern each respondent’s citizenship or immigration status as there is no citizenship question included in the 2020 census. The president last year directed federal agencies to collect and submit data to the Commerce Department on citizens and noncitizens in the United States and signaled that information would be used to help determine the census count.
Trump in an executive order last year, following the Supreme Court’s ruling on the citizenship question, ordered federal agencies to share all available information with the Commerce Department – which runs the Census – to discern which respondents are legally in the country and which are not.
That order specifically mentions the Department of Homeland Security (DHS) and its files of visa and green card holders as well as naturalizations, entry and exit records; the State Department’s passport and refugee records; and the records of social services like Medicaid and the Social Security Administration.
“The Census Bureau has been collecting records from departments and agencies. Those records should provide a basis for identifying illegal aliens,” a White House official told The Hill.
Tuesday’s order drew swift reactions from other lawmakers and advocacy groups that, amid the coronavirus pandemic, were already concerned about minority groups being undercounted in the census and consequently affecting the apportionment of representation and resources for years to come.
“The Constitution requires that everyone in the U.S. be counted in the census. President Trump can’t pick and choose,” Dale Ho, director of the American Civil Liberties Union Voting Rights Project, said in a statement. “
“He tried to add a citizenship question to the census and lost in the Supreme Court,” Ho continued. “His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.”
Rep. Gil Cisneros (D-Calif.) said Trump’s order is an attempt to depress minority participation in the Census [which already has a low response rate due to the coronavirus pandemic].
“Instead of working to stop the spread of the coronavirus, President Trump is putting his energy into undermining the U.S. Census. This executive order is another blatant, backward attempt to depress the number of individuals who could participate in constitutionally-mandated population count. After the Supreme Court blocked him from adding a citizenship question to the 2020 Census, the President is trying to unlawfully sidestep their ruling,” said Cisneros.
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“It’s a direct focused attack on political power. It would be reducing the political representation of America’s most diverse states,” said Kagan, one of the litigators in the case that blocked the citizenship question.
The new policy takes aim solely at the Census’s apportionment effects, but ignores its budgetary effects — funding from federal programs is in large part assigned according to Census data.
If undocumented immigrants were successfully excluded from the census, California — with its more than 2 million undocumented residents — would bear the brunt of representational effects.
But red states like Texas and Georgia — home to 1.6 million and 400,000 undocumented residents, respectively — would also be hard-hit, potentially losing seats in Congress.
Some administration allies cheered the move. Dan Stein, head of the Federation for American Immigration Reform, a group that advocates for restricting legal and illegal immigration, called the memo “an honest attempt” to ensure every citizen and legal immigrant receives “full and fair representation.”
The order is the first in what is expected to be a string of unilateral actions by Trump in the coming weeks. Chief of staff Mark Meadows teased earlier this month that Trump was preparing orders related to immigration, manufacturing and other issues, though he would not elaborate.
Trump has said he is readying an order that would emphasize merit-based immigration, but he has fueled confusion by suggesting the action would also address the Dreamers protected under the Deferred Action for Childhood Arrivals (DACA) program as well. White House aides have disputed that DACA will be covered by the executive order.
The administration is widely expected to try for a second time to rescind DACA after the Supreme Court rejected its first attempt but did not dispute the president’s right to end the program.
Brendan A. Shanahan, a scholar of U.S. immigration and citizenship history, focusing on political and legal battles over nativist citizen-only policies in the late-19th to mid-20th century American political economy, explained in a scholarly op-ed in March, Counting everyone — citizens and non-citizens — in the 2020 census is crucial (excerpt):
[T]he Trump administration’s efforts to assist in the malapportionment of state legislatures have only begun. Court battles seeking to exclude all or some noncitizens from future apportionment and redistricting plans continue despite the courtroom defeat of the citizenship question last summer. And President Trump has issued an executive order requiring federal departments to share citizenship data in their possession with the Commerce Department as a means of working around the court’s rejection of a Census citizenship question.
With post-2020 Census redistricting battles and apportionment fights on the horizon, it is useful to explore the little-known yet cautionary tale of citizen-only apportionment schemes in American history. While this past reveals that anti-alien apportionment proposals can be — and have been — defeated, it also warns that if adopted by state governments (and found to be constitutional by the U.S. Supreme Court), such policies will likely carry significant weight and prove hard to repeal for years to come.
Frequently tied to other provisions circumscribing the power of marginalized communities in state politics, measures excluding noncitizens from the population for the purposes of apportionment date to the early republic. New York barred noncitizens — alongside free blacks and paupers — from the state’s apportionment basis following its 1821 constitutional convention.
Decades later, Henry Gardner, the anti-Catholic Know Nothing governor of Massachusetts, successfully campaigned for an anti-alien apportionment state constitutional amendment in 1857 during a period of intense anti-Irish nativism. Delegates to California’s 1878-1879 constitutional convention forbade “aliens ineligible to citizenship” (namely East and South Asian immigrants) from the state’s apportionment basis at an assembly dominated by the violently racist anti-Chinese Workingmen’s Party. And Nebraska excluded noncitizens from state legislative apportionment calculations amid a flurry of anti-German legislation, constitutional revision and vigilantism during and immediately after World War I.
Anti-alien schemes reached their nadir when the U.S. House of Representatives was not reapportioned — at all — following the 1920 Census. [This was at the height of a resurgent Ku Klux Klan]. Throughout the 1920s, a powerful bipartisan nativist faction of lawmakers representing — or allied to — regions set to lose seats in the House of Representatives flagrantly flouted their constitutional obligation to reapportion the House every 10 years. That same faction further demanded the passage of legislation to exclude noncitizens from future rounds of reapportionment despite the constitution’s requirement to base congressional reapportionment on the total population residing in the United States.
Then, as now, proponents of citizen-only proposals frequently argued that including noncitizens in apportionment calculations unfairly reduced the power of voters in (usually rural) jurisdictions with large citizen populations in relation to (often urban) communities with large noncitizen populations. Opponents of these measures, by contrast, charged that anti-alien policies amounted to “taxation without representation” and defended noncitizens as law-abiding “constituents.” But these were not the only terms of debate.
Supporters of anti-alien apportionment plans frequently embraced anti-urban and xenophobic rhetoric. New Hampshire politician Henry Metcalf argued that urban centers, composed “largely of alien population, who have no interests in common with the average intelligent New Hampshire voter,” were “not entitled to the same consideration as” residents of “little country towns” at the state’s World War I-era constitutional convention. And, according to a 1920s New York Times article, a woman identified as “Mrs. E.M. Dickinson,” treasurer of the New York State Women’s Republican Club, supported a nationwide citizen-only congressional apportionment basis, citing a highly inaccurate belief that “crime could be traced in most instances to alien criminals.”
Supporters of including noncitizens in apportionment policies fiercely contested — and sometimes defeated — the nativism espoused by Metcalf and Dickinson. New Hampshire voters did not ratify a citizen-only apportionment policy following the First World War. And the decade-long nativist attempt to ban noncitizens from the federal House of Representatives apportionment basis was finally defeated in 1929. When Congress was reapportioned following the 1930 Census, noncitizens were included in those calculations.
When they were adopted, however, anti-alien apportionment provisions usually proved powerful and durable. New York’s citizen-only policy, coupled with the explicit overrepresentation of rural counties and the state’s failure to reapportion the legislature on a regular basis, grossly inflated the number of legislative seats assigned to upstate (largely native-born and Republican) communities vis-a-vis New York City’s (largely immigrant and second-generation Democratic) districts. While Democrats frequently won statewide elections — sometimes by huge margins — in the early to mid-20th century, these malapportionment schemes ensured that Democrats would control both chambers of the state legislature for only a mere one year (1935) between 1913 and 1965.
Citizen-only apportionment policies also proved to be a massive challenge to enforce. Whether states used federal Census citizenship information or ran their own enumerations to identify noncitizens, data limitations led to repeated difficulties in implementation and accusations of inaccurate reapportionment calculations. Yet, despite these challenges, anti-alien apportionment measures proved stubbornly resistant to repeal efforts. The state constitutions of New York and Massachusetts retained their 19th-century citizen-only apportionment provisions until 1969 and 1970, respectively.
Though a citizenship question will not be included on the 2020 Census, the Trump administration’s attempts to enable new anti-alien apportionment measures are far from over. At this moment, it continues to amass citizenship data via alternative administrative records. Meanwhile, some Republican state legislators gearing up for redistricting and reapportionment battles — encouraged by the conservative American Legislative Exchange Council — are considering using this data to craft citizen-only apportionment schemes for their own state houses.
Were a state-level citizen-only apportionment proposal to come into force, it would undoubtedly be challenged in court. Voting rights and immigrant rights advocates have a plethora of evidence to demonstrate the harm such a policy would impose on racially marginalized communities and the would-be provisions’ violations of the (federal) constitution. But lawmakers and advocates who support including all residents in apportionment calculations — as community members and as taxpayers — should not assume that this Supreme Court will strike down a new anti-alien policy that may arise in the future.
History teaches us that proposed anti-alien apportionment plans can be defeated. It also indicates that, once adopted, such provisions are likely to become embedded into the politics and constitutions of those states. As in earlier eras of American history, such policies threaten to exacerbate inequalities in representation not only during the 2020s, but for decades to come.
Joe Biden needs to hire a team of lawyers just to review all of the executive orders that Donald Trump has issued to prepare the necessary documents to rescind all of the executive orders that Biden would rescind, and have them ready to go for his signature on his first day in office.