Can non-citizens be excluded from the census count, which serves as a basis of apportionment and allocates seats in the House of Representatives? Janai Nelson of the NAACP Legal Defense and Educational Fund and John Eastman of Chapman University debate this question, which is at the heart of Trump v. New York, the 2020 census case that the Supreme Court heard on November 30. Jeffrey Rosen moderates.
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PARTICIPANTS
Janai Nelson is Associate Director-Counsel of the NAACP Legal Defense and Educational Fund, where she is also a member of LDF’s litigation and policy teams. Nelson joined LDF in filing an amicus brief in support of appellees—the state of New York.
John Eastman is Henry Salvatori Professor of Law and Community Service and Director at the Center for Constitutional Jurisprudence at the Dale E. Fowler School of Law. He previously clerked for Justice Clarence Thomas at the Supreme Court. Professor Eastman joined two separate amicus briefs on behalf of appellants including President Trump.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Trump v. New York oral argument transcript
- Department of Commerce v. New York (2019)
- Evenwel v. Abbott (2016)
- Franklin v. Massachusetts (1992)
- Reynolds v. Sims (1964)
This episode was produced by Jackie McDermott and Lana Ulrich, and engineered by Kevin Kilbourne. Research was provided by Lana Ulrich and Alexandra "Mac" Taylor.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the constitution among the American people. On November 30th, the Supreme Court heard oral arguments in the 2020 census case, Trump versus New York. To explore the case and recap the argument, I'm joined by two experts who filed amicus briefs in the case. Janai Nelson is associate director counsel of the NAACP legal defense in education fund where she is also a member of LDF's litigation and policy teams. Janai Nelson joined LDF in filing an amicus brief in support of appellees the State of New York. Janai, thank you so much for joining.
Janai Nelson: [00:00:51] Happy to be here, Jeffery, thank you.
Rosen: [00:00:53] And John Eastman is Henri Salvatori Professor of Law and Community Service and Director at the Center for Constitutional Jurisprudence at the Dale F. Fowler School of Law. He previously clerked for Justice Clarence Thomas at the Supreme Court. Professor Eastman joined two separate amicus briefs on behalf of appellants including President Trump. John, it's great to have you back on the show.
John Eastman: [00:01:13] thank you Jeffery for having me.
Rosen: [00:01:15] Janai, let's begin with the facts. How did we get here, what is the president attempting to do and what is the Supreme Court being asked to decide?
Nelson: [00:01:23] So we got here, through a number of, of different efforts on the part of this administration to manipulate census data to ultimately manipulate reapportionment and redistricting. you could say that this started as, as far back as perhaps 2015 when Thomas Hofeller, a Republican strategist who's now deceased issued a plan for the Republican party to take hold of the redistricting process by manipulating the census data to harm communities of color in particular and to target them by excluding them from the census.
And we learned about this just last year when some of his files were released by his daughter after he passed away and we saw that he said quite specifically that it would be quote, advantageous to nonhispanic whites to exclude non-US citizens from the census. Fast forward, you find that President Trump pushed the Secretary of Congress, Wilbur Ross, to include a citizenship question on the short form of the census. This was the first time that a president had attempted to do that, in the course of 70 years over both Democratic and Republican administrations. So, this was a departure from pattern and practice of, census, [inaudible 00:02:57] actually cited Thomas Hofeller's memo and it also acknowledged that, it seemed be to quite pre-textural that the president was seeking to exclude US citizens.
And so just last year, the court struck down this attempt to include a citizenship question on the census. Fast forward another, year, and President Trump attempted to do an end run around that Supreme Court decision by asking for two sets of data from the Secretary of Commerce, one set that is the accurate count of all persons residing in the United States, and then a second set of data that excludes persons who are not US citizens and his hope is to use that second data set to reapportion representation in Congress. And that's really the substitutive issue that the court has to decide, unless it decides to punt on procedural grounds and doesn't decide the substance of the issue. But that's how we got to where we are today which is frankly the third attempt on this administration's part to manipulate the political process by excluding US citizens from the count.
Rosen: [00:04:06] Thanks so much for that. John, Janai called the President's decision an end-run attempt around the Supreme Court decision forbidding him from adding a citizenship question to the census. How would you state the facts differently if you would and how would you say that we got to where we are and what do you think the Supreme Court is being asked to decide?
Eastman: [00:04:24] Well certainly not with a loaded description of the facts that Janai just provided. Look, the Supreme Court did not forbid the President from asking a citizenship question. It said that the reasoning that had been given by the Secretary of Commerce was not valid. That certainly left open the possibility of coming back and redoing the process. But here's the real substitutive issue: when we do a reapportionment, are we reapportioning by citizens who have a role in our body politic or are we reapportioning based on anybody who happens to be present in the United States at the time of the census, whether they're temporary visitors or on student visa or even unlawfully present in the United States and so they're not legally here at all. And you know, this goes right back to the Declaration of Independence and the very foundation of our government. It's based on the consent of the governed, not on the consent of people from other companies who happen to be visiting here.
and our apportionment is supposed to be based on the, the political representation of those who are actually forming the body politic. President Trump is trying to bring our census back in line with that. And it's just simply not true that historically we haven't asked questions on the census about citizenship. we asked it on every census save one up until 1950 and then it got added to the annual survey thereafter, which accomplished the same thing, all the way up until 2010, which was the first one under the Obama Administration where we didn't actually ask about citizenship.
So, the president was trying to restore that and also restore the very basic notion of who is the governing authority in this country and it is the citizens in this country. The distinction between citizen and noncitizen, particularly between non-citizens who are not even lawfully present in the United States, is actually pretty critical to understanding sovereignty. and so, what the president is trying to do, by bifurcating the census is say, look we do a, a lot of authority from Congress that has nothing to do with the apportionment count. There, there's two grounds, in the Constitution that allows Congress to, to, to conduct a census. One is the apportionment count, the second is the commerce power, and the spending power and all of the things that flow from either spending or, or commerce authority are based on a total number of persons within a jurisdiction. How many schools, how much expansion and roads we're gonna need and that sort of thing, that's under the commerce authority. But for apportionment, we're supposed to be looking at who the governing authority is, who the people of the United States are, who are its citizens.
And I think the President is absolutely correct in pushing this issue to get back to actually connecting our representation to those who are being represented, and that's what he's seeking to do and asked the Supreme Court to approve.
Rosen: [00:07:04] Thank you for that. Janai, let's focus now on the substance of the case. Just as Breyer said in the oral argument that the relevant statutory text is that the President shall transmit a statement showing the whole number of persons for the purpose of apportionment and Justice Barret said that in response to Justice Breyer, a lot of the historical evidence and long-standing practice really cuts against the government's position. Tell us why Justice Breyer and Justice Barrett and some of the other justices seem to believe that historical practice and long-standing tradition suggest that persons includes non-citizens.
Nelson: [00:07:41] Sure, it's based on a clear reading of the constitution and the statutory authority that enables the tabulation of the population for purposes of the census. So, it's actually you know, a misstatement of fact to suggest that this has not been the practice in this country for as long as enumeration has existed. We have always counted whole persons, including people who are here without immigration status, who do not have citizenship status, who may be unauthorized in their citizenship status. That is not a departure from the norm, in fact that is a continuation of the norm. Whole persons, if you are a textualist, as Justice Barrett is for example, clearly means people who, who's usual residence is in the United States.
So contrary to the suggestion that these are mere visitors or people who are temporarily here on a tourist visa, we're talking about people whose usual residence is in the United States, and we're talking about, at this point, if you're thinking about adults, the typical adult immigrant who has unauthorized immigration status, has lived in the United States for 15 years. This came up in oral argument yesterday. It was conceded that people who are just passing through the United States as visitors or tourists would not be counted in the census, but those who are here without authorized immigration status who are residents, who are tax payers, who are our neighbors, who are essential workers, who are contributors to our society who are part of the fabric of this country ought to be counted as part of our theory of democracy, which is a representative one. The last Justice Ginsberg referenced representational equality when this matter came up in an earlier case called Evenwel versus Abbott, and she described that as insuring that everyone who resides in the United States is represented in government.
Citizenship status is not the predicate for that representation and not for the allocation of congressional power. If we were to exclude persons who are not citizens of the United States, we'd have what you call an apportionment anomaly. We would have states that are so out of balance in terms of their population and their representation in congress that it would do deep damage to our system of government and to the theory of representational equality.
Rosen: [00:10:19] John, at the oral argument, Justice Barrett asked General Wall. She said that the question is what's an inhabitant, and she said, you know, "There's evidence in the founding era, an inhabitant was a dweller who lives or resides in a place," you do have this Vittel quote that defines an inhabitant as distinguished from a citizen as a stranger who's permitted to settle and stay in the country. Do you think the Vittel quote is your best evidence? Tell us about this Vittel quote, is it the best evidence and what other evidence is there in the founding era that inhabitants excluded noncitizens
Eastman: [00:10:53] Well I, I, I think, I don't think the Vittel quote is the best evidence, though certainly it's good evidence, the best evidence is in the text itself. It says all persons, and it says, "Excluding Indians not taxed," and understand why we have that exclusion there goes right to the heart of the matter. excluding Indians not taxed, meant people who are not part of the body politic even though they were physically present within the United States. that was a short hand for those who are not part of the political system. And I'll go back to the Declaration of Independence. The government is found based on the consent of the governed, not on the consent of people who are not part of the, of the political community.
One of the other questions there in oral argument was, you know, what about temporary visitors and the example I like to give is suppose the 1984 Olympic in Los Angeles had been held in 1980 instead while the census was going on. A million and a half extra people in Los Angeles as a result of that Olympics. was, because they were physically present when the census was being conducted, would they be counted? It's absurd to give ca- California two extra congressional seats as a result of that, you know, one off event.
But the same thing is true by people who are here illegally. the word person in the constitution has always been understood as person who are residing here. That means legally residing here. That doesn't mean illegally residing here. He- here without legal permission, and what the president has done is say it's important for representational government that we actually apportion based on people who are in the governing authority, who are part of the people that are supposed to be choosing the government, not anybody else who is not part of the government.
Rosen: [00:12:24] Thank you for that, Janai, John made two arguments, he said that the language about excluding Indians not taxed suggests that, citizens were the political community, for purposes of apportionment and he also noted the Declaration of Independence reference to the consent of the government. In New York's brief, General Underwood noted that both the founders and 14th amendment framers understood the broad language they'd chose would include the entire immigrant population. They considered and rejected apportionment basis that wooed have used immigration status to exclude usual residents. Tell us more about that 14th amendment history and why you think that that Indians not taxed line which, which was in the 14th amendment doesn't lead to the conclusion that noncitizens can be excluded?
Nelson: [00:13:04] Well certainly the primary argument [laughs] as to why we should not be relying on this retrograde and frankly racist provision of the constitution is that it ultimately was amended not only by the 14th amendment, but ultimately by statute that enabled Native Americans, our indigenous population in this country, to be counted as full citizens. So, the idea that we are hearkening back to provisions of the constitution that have sense been amended either by the constitution itself or by statute is really, in my mind, such evidence of the desperation of this argument. We should also note that not only were Native American excluded from the initial population count, only three fifths of every black human in slave holding states were permitted to be counted. There was a constitutionally mandated under count that endure for over 80 years for African Americans, into the first quarter of the 20th century and into the first quarter of the 20th century for Native Americans. And the idea that in 2020, we are relying on those provisions as justification to exclude persons who are noncitizens even though this country has always, including at the time that it excluded Native Americans and African Americans, it counted those who were not citizens as part of the census count, is you know, frankly just absurd.
And again, it buries the lead of the entire case. And that is how this entire effort came to pass. It is clearly motivated by the intent of a political party to manipulate the political process by excluding groups of people that it believes will harm, you know, and, and quote, nonhispanic whites. That is the motivation, that is why Chief Justice Roberts said that inclusion of a citizenship question on the short form of a census was pretext. Pretext of what? It's pretextual political manipulation and [inaudible 00:15:24]. That's what the court is referring to.
And so, this new effort to now manipulate the data that the census has accumulated is just a way to have the same result of including the ultimate depression of numbers that is bolstered by people who don't have authorized immigration status in this country. And we're talking about roughly 10.5 million individuals. The impact of that exclusion could be quite devastating and create a severe imbalance in political power in this country and it will leave millions of people unrepresented in this government.
Rosen: [00:15:56] John, what is your response to Janai's argument that that language about Indians not taxed, in addition to having been amended by statute doesn't suggest a general intent of the 14th amendment framers to exclude non-citizens because in fact the, 14th amendment framers did not, exclude noncitizens, from the census. And, and more broadly, what, what's the response to the argument of Justice Barrett and Justice Breyer and other justices that never before in American history has a president attempted to exclude noncitizens, from the apportionment count, and that counts against imputing a constitutional authority.
Eastman: [00:16:29] So, a couple of things. First, let's start with the three fifth clause. The three fifths clause was designed, at least in part, to limit the political power of the slave owners by not letting them get representation based on the total number of their slaves. Reducing that reduced their power in congress and made it more possible for congress to, for example, ban the salve trade the minute they were allowed to do so in 1808. the second thing is, it did not exclude blacks as she said in the southern slave holding states. It only excluded slaves or treated slaves as three fifths for purposes of the count. free blacks were counted just like everybody else, a- as were Native Americans if they were part of the political community. In other words, if they had become Indians who were taxed like others in the community. It was only Indians who were not taxed. Those that were not formed, as part of the political community that remained as separate political communities with their Native American tribes that were excluded from the census.
That remains, in the 14th amendment. And of course, Congress can't by statute amend the Constitution. What it did by statute, a series of statues culminating in a, in a broad global statue in the 1920s was to offer all Native Americans citizenship. and of, of course at that point, they are no longer Indians not taxed, outside of the political community, they are part of the political community and entitled to the full representation and part, being part of the apportionment.
But, but that language makes very clear that those who are not part of the political community, those that are outside the political community, like people who are not even lawfully present in the United States in the first place, are not to be counted according to the apportionment. And think about it the other direction. Miss. Nelson talks about, you know, it would be unfair to representation for, you know, for states like California that have millions of illegal immigrants in the state, to not have those people counted in their representation. What that does it encourages California to refuse or to corporate with federal enforcement of our immigration laws because they get more political, power as a result of illegal activity. that, it, that just makes no sense and it certainly makes no sense from the foundational principle that our government is based on consent of the govern.
The question is who is the governed? Who are the people in the United States that are the sovereign authority here? And if you expect, if you think it's anybody the world over who happens to sneak into our borders, you really don't understand the basic principles of the Declaration of Independence. It's not that. We form a political community and it's that political community that has the governing authority in this country. We divvy up that governing authority based on where that population is and it's not the population of anybody the world over. It's the population of US citizens.
Now, for most of our history, it didn't matter much because there wasn't any disparity between total population and citizen population, so it was just easier. but now there's a huge disparity. We're talking about several congressional seats being transferred from places like Alabama that play by the rules to places like California that refuse to play by the rules, on our immigration laws. and that just can't, we can't have a system that actually encourages illegal conduct in order to get more political power, and yet that's the essence of what California and New York and others are claiming.
Rosen: [00:19:42] Janai, John says that the president had the authority throughout history but it only matters recently and that's why this has become salient. The justices in the argument suggested that for all of our history, non-citizens were in fact counted. It wasn't that they might have been excluded, but they've been presumed to be a part of the apportionment and have in fact been counted. The only case to the contrary the government offered is a case called Franklin against Massachusetts, which says the president has some discretion to treat overseas government workers as residents of their states. Tell us about that historical practice and then tell us about why you think that Franklin and Massachusetts case doesn't support the president's broad discretion to exclude noncitizens.
Nelson: [00:20:26] Sure, I mean it's just patently wrong to suggest that there's never been a disparity between citizens and noncitizens in this country. This is a country of immigrants. There has always been a disparity between the number of persons who are actual citizens of the United States and those who aren't. And we've always counted all of those persons as defined by the plain text of the constitution. If you have to add in fillers to suggest that persons requires residency, that requires lawful residency, in defiance of over 200 years of practice, then, we should be quite suspicious of the motivations and the interpretation of the constitution.
Franklin versus Massachusetts is a case that involves federal employees who reside overseas and how they should be counted as part of our census. That case is, I think one that is not terribly controversial. I think if you heard the argument yesterday, it seems that, that both sides concede that the president does have authority to influence policy as it concerns enumeration and the census. And in the Franklin case, before the census was conducted, there was a question about how you define the usual residents of federal employees who reside overseas and ultimately the president's decision in that matter was to count those individuals in their usual residence in the United States, their home state. So, they were not excluded from the population count.
Again, a principle of inclusivity, a principle that suggests that we should be counting those who have ties, actual ties to the United States, including residency. What that case stands for is the, the very basic principle that the president can influence policy. It doesn't answer the substitutive question of whether how the president influence policy is constitution and when the president's motivations are tainted by racial discrimination and excessive partisanship, that authority becomes unconstitutional. Whether he has the right to exercise it is one thing, but whether he exercises it in a constitution matter is the question before the court that unfortunately it didn't grapple with extensively yesterday, but we do hope the court will take up that matter because this would be such a significant departure from our historical practice, from our theory of representation and would feed into the excessive political... politicization of our redistricting and reapportionment processes that are already incredibly fraught and polarized.
Rosen: [00:23:14] John, tell us about how important you think the Franklin and Massachusetts case is. General Wall said that the president here was just exercising his authority under the Franklin case to tell the secretary that he wanted to look at a different set of numbers so he could make a decision about his apportionment base.
And then tell us, what relief would you like if the court were to rule on the merits? Would you like them to say that the president has the authority, if he chooses, to exclude all say 10.5 million illegally present, noncitizens from the apportionment if he chooses?
Eastman: [00:23:45] Well so the Franklin case dealt with citizens and you know, where we should treat their residence as citizens and, and, I, you know, as Miss Nelson pointed out, we were looking at the question of residence, which just a moment ago she said is no part of our understanding of persons in the text of the constitution. I think it's an important understanding. and, and, both pa- portions of that, citizenship as well as residency. And what the Franklin case held is that the president could deem the, the permanent residents as within the state even though they were long-term abroad with a new residence where they were working and we could count them for purposes of apportioning.
But there are two critical pieces of it. They were citizens as well as deeming them to be, have a residence in their home state before they, transferred to go work abroad. the flip side of that of course is, those that do not have a legal residence in this country and are not citizens ought not to be counted in the apportionment and I think that's why the, the United States has relied so heavily on that, on that case. You know, and it, and it really does go back to what is the, the, the basic understanding of, of who the governing authority in this country is. Is it the people of this country or is it the people of anybody else?
There was another set of questions during oral argument that we, we've kind of overlooked, but that, you know, focused on people who were here temporarily. You know, and not just, you know, coming for a, a weekend and happen to be there while the census. Say there were here on a, a one-year student visa or a one-year work visa, no part of our body politic, no lawful permanent residence in the United States. Should be the- should they be counted and if their numbers are significant enough, in New York City or in California, to actually add a congressional district and take it away from another state. Remember this is a zero-sum game here. If California adds two three congressional districts because of its illegal immigrant population or it's temporary, work or student visa population, they are detracting from a place like Montana or a place like Alabama that doesn't have that population. And so the, the real question goes to should we give additional representation to, to states that facilitate illegal immigration in numbers that would skew the political representation in congress, and, and in choosing the president?
This isn't an issue about race. This is an issue about citizenship and whether we're gonna still have a sovereign nation based on citizenship or whether we have to throw the whole notion of sovereignty and citizenship overboard because of, of, of claims of illegality, affecting how we politically apportion our political system and our political representation. That's the key bottom of this case, if the court gets to it. Of course we haven't talked about yet whether the court might punt and say it's not yet ripe, the president has asked for these numbers but he hasn't actually given an ascertainment, about them. Those, those I, I think are very important procedural issues that we haven't gotten to yet.
Now but the, but the core issue, the core issue on the merits is who is the governing authority in this country? Is it anybody that happens to be within our borders? or is it the citizens and does the distinction between citizen and noncitizen still matter for our governing politics? And I think it does. I think the constitution particularly the Indians not taxed clause specifically acknowledged that. And all we're doing is updating that language because that was the issue at the time of 1787 when the, when the clause was first drafted. We're updating that language to implement what the broader principle that it was codifying, which was we, apportion based on the political authority in the country, citizens, not apportion base on people who are not part of the body politic for whatever reason.
Rosen: [00:27:23] Thanks so much for that. All right, well let's talk about the numbers and practical effects of this case. Justice Alito noted that there are an estimated 10.5 million people in the United States illegally but the government has been able to identify 60,000 people with a degree of certainty that is those in immigrations and customs enforcement detention. Janai, is the government in fact asking for the authority to exclude all 10.5 million and given the difficulty identifying that by January, what in practice would a court ruling giving the green light to exclude noncitizens mean?
Nelson: [00:27:57] Yes, the, the memorandum is, is asking to exclude illegal aliens as it calls, persons without authorized immigration status from the apportionment base following the 2020 census. In fact that is the title of, of the memorandum and it asks that that population be subtracted to the extent practicable. And so that's part of the issue here is how practicable is it to exclude different categories of persons who are not authorized, immigrants? And, there was some, you know, testimony or argument yesterday concerning whether the census could meet the deadline to supply at least some data to the president by December 31st, which is what, precipitated the expedited review of this case by the court. it's unclear what categories of information can be supplied, which is another frailty of this memorandum and of this process. If you subtract some portion of the population of unauthorized immigrants but not others, how does that skew the population? It's the very inconsistent way of conducting an enumeration of our population for purposes of reapportionment.
So there are a whole host of reasons why not only is it unconstitutional, but it is also just a concerning administrative feat if the population can't be, uniformly counted and if this rule were to be in place there are certain categories of unauthorized immigrants who would be included or excluded. So there's a great deal of inconsistency that's likely to occur. One thing to keep in mind is that, you know, immigrant persons comprise 13.7% of the US population with a quarter of that population being undocumented. So when we talk about immigrant persons, the idea that this, these are mainly people who have come to the country illegally or who are here unlawfully, is just flatly wrong. It's [laughs] an exaggeration of the issue and it's meant to provide red meat to a base of folks who, are anti-immigrant, and who don't want to recognize the contributions of immigrant persons to the United States and the history of those contributions and the fact that they have always, as I, as I continue to you know, drum home, have always been counted as part of the American body politic.
And, it's true that the consequences, are, are quite significant in terms of the allocation of congressional power. But to the extent that Professor Eastman is suggesting that this is an incentive for states to encourage unlawful immigration or to flout our immigration policies, this is not the vehicle to amend our immigration laws. If there are concerns about immigration and immigration policy, those should be addressed head on and we should not sacrifice the integrity and sanctity of the census enumeration and of the reapportionment and redistricting processes by providing a false count of who is in fact residing in this country and who is deserving of representation in our government and I will remind your listeners again that many persons who are here with unauthorized status pay taxes, are in our schools, are serving in our military, are contributing to our society in such significant and essentially ways, the idea of excluding them from the enumeration of our population and from the representation of Congressional power is antithetical to who we are as a representational democracy.
Rosen: [00:31:51] John, in the last, round before closing arguments, what is your thought on the numbers? Is the president asking for the authority to exclude 10.5 million people or 60,000 people or, or what number do you believe he has the authority to exclude? And I do want to ask a question Justice Breyer pressed, the relevant statutory language is that the secretary of commerce has to provide the president with a report containing the tabulation of total population of the states that contains the whole number of persons in each state and Justice Breyer said the constitution and federal law always distinguish between persons and citizens. The 14th amendment itself distinguishes between the privileges or immunities of citizens and the equal protection of persons so in that sense, how do you equate the word persons with citizens?
Eastman: [00:32:36] Sure, well, you, you, you gotta look at it in the context and I think, Justice Breyer's claim that persons means anybody who's here simply ignores the, the language that it deliberately excluded noncitizens with the Indians not taxed clause. the, the question is was that the extent of the exclusion or was it rather, an example of exclusion of people who were not part of the body politic. And I think, I think the, the history of the, of the adoption of the clause as well as the political theory of the declaration on which its based, suggests that it excluded people who were not part of the body politic.
now, so what that means is, you know, the president is seeking to exclude everybody who is not lawfully present in the United States. They are not persons in the United States because they are not lawfully present in the United States. they are not part of our body politic.
And let me give you just another example of, of how I think this skews, and it came up in the Evenwel case, when Texas was, was, when it, so- suit was brought against Texas to force them, to count only citizen population rather than the non-citizen, illegal immigrant population as well in their internal se- state apportionment. The court held that they weren't obligated to do that, but it certainly did not hold that they were not prevented from doing it either. Let's suppose you've got congressional district of roughly 700,000 people and apart of Los Angeles County, where almost everybody in that area is illegal immigrant population. Maybe, maybe 10% of that or 70,000 people, lawful citizens. that, those 70,000 get a single member in congress and the next congressional district over that doesn't have any, population at all, 700,000 people. In other words, the weight of the citizens in the first district, is given 10 times the representational power, in congress than the weight of a voter in the, in the second district.
That cannot be, compatible with equal protection and the ideas of one person, one vote, one citizen, one vote, that the Supreme Court set out in Reynolds versus Sims and a number of these other cases. You've got to ask what the proper denominator is and the denominator is, is the people of the United States. The people who are citizens of the United States. Citizenship matters. That's the authority for the political representation.
We, we, we can divide up federal largess and funding based on, total population beyond that, if we choose, but it's a different authority of congress to do that, than, than simply, the apportionment authority in Article One.
Rosen: [00:35:03] Well it is time for closing arguments in this vigorous debate and Janai, the first, is to you. Please sum up for our listeners why you believe that the federal requirement that the president send a report to congress that contains the whole number of persons in each state does not allow him, under the constitution, to exclude noncitizen.
Nelson: [00:35:25] Well there are a number of reasons but I'll, I'll, I'll state what I think is most compelling and, and it really goes back to, you know, this reliance on the exclusion of Indians not taxed. That argument actually cuts in favor of continuing to count all persons, including non-citizens as part of the whole count of the American population. Article One specifically excludes Indians not taxed from the counting, to be undertaken for apportionment purposes and it shows that when the framers wished to limit or exclude persons from the count for apportionment purposes or any other purpose, it did so explicitly. It stated that in no uncertain terms, as it did in the very unfortunate three fifths clause.
Other than that, it was clear since the founding of this country that even individuals who were not citizens were counted in our population count and that has been our practice for our entire history. In the Federalist Papers, James Madison explained that apportionment was to be founded on the aggregate number of inhabitants of each state. The framers were clearly aware that apportionment and representation would include people who were ineligible to vote. It included women, children, you know, bound servants, convicts, people who were mentally incapacitated. So, to suggest that only people who are citizens or, active participants in the political process in the electorate should be counted is just diametrically opposed to [laughs] our history and the ethos of representational democracy.
and also, it, it doesn't put this country on a path to recon with the increasingly diverse populous that feels the engine of this country. By 2045, this country will be comprised of a majority of people of color and there will be a percentage of those who are not citizens of this country. If we do not recognize their places in our society, their contributions to our society and ensure that resources are allocated appropriately, federal resources and congressional power to represent these constituencies, we stand to lose the greatest strength of this country and that is our diversity. That is our ability to leverage the power of immigrants to fuel our economy, to increase and, and enhance our cultural identity and to make American continue to rise as a, an exemplar of what a multiracial, multiethnic democracy can be in the 21st century.
Rosen: [00:38:30] Thank you so much for that. John, the last word is for you, please sum up for our We The People listeners why you believe that the statutory requirement that the president transmit to congress a report that contains the whole number of persons in each state allows him to exclude non-citizens.
Eastman: [00:38:48] Oh, the, I think the language in the statue, the persons in each state as well as, the language of the constitution itself, person in the United States, reflects, the people who are here as part of our political community. It doesn't include people who are temporarily visiting even though they are technically within the borders of the United States at the time and it certainly doesn't include people, how are not even lawfully in the United States. I think that distinction goes to the heart of what citizenship means and what consent of the governed means and what representative democracy actually means. It doesn't mean that people who are not part of the political community get to have a say, in, well they actually don't have a say, but other people counting their numbers will get an enhanced say as a result of a skewed apportionment that counts, in some states, large illegal immigrant populations that other states don't have. that will skew the representational power of the people that are actually in charge of the government. that, that cannot be the right answer and I think the Indians not taxed clause demonstrates that the founders knew that people were to be excluded who were not part of the political community.
Janai keeps, conflating two important things that need to be kept separate. Those, lawful immigrants who have become part of our body politic, who have, achieved green card status and lawful permanent residency and the president of course has made no motion, to exclude them from the census. They are on the way to becoming part of our political community. The distinction between lawful immigration and unlawful immigration, people that are not even legally present in the United States is I think the critical one for purposes of representation. And if Congress in its infinite wisdom wants to spend money on illegal immigrants and, and schools for illegal immigrants and all the other political largess that comes out of Washington DC then, then it can have a census that includes that count as well, but that is distinct from the count of apportionment for purposes of political representation. If we do are, are still recognize that this political community is governed by the citizens of this political community, not the citizens of other nations who have managed to sneak into this country, du- during a time that a census was conducted.
And it really does go to the heart of what representative government is about and who it is that is being represented and it's not people who are here illegally. They are not part of the p- political community and therefore are not part of the representation. If they were, then, then the next question would be well why don't they get a say as well? Why not a vote as well? and of course, that would completely obliterate any distinction between citizen and noncitizen, not just in this country, but the world over.
You know, as long as we still have a system of government that is based on geographic boundaries and national sovereignty, these kind of distinctions matter, and I think what the president is doing here is pressing a long overdue issue.
Rosen: [00:41:38] Thank you so much Janai Nelson and John Eastman for a vigorous and important debate about the scope of the president's authority to exclude noncitizens from the census. Janai, John, thank you so much for joining.
Nelson: [00:41:52] Thank you Jeffery, thank you John.
Eastman: [00:41:54] Thank you both.
Rosen: [00:41:55] Today's show was engineered by Kevin Kilburn and produced by Jackie McDermott and Lana Ulrich. Research was provided by Lana Ulrich and Mack Taylor. Please rate, review and subscribe to We The People on Apple Podcast and continue to recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional debate. And always remember that the National Constitution Center is a private nonprofit. Thank you so much friends for the small donations that some of you have been making, $1 or $5, to signal your support and commitment to this really necessary project of civil constitutional debate. It's more important now than ever. You can support our mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work, including the podcast, at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffery Rosen.
