On Tuesday, President Trump released a memo to exclude from the apportionment base aliens who are not in a lawful immigration status. This means that undocumented aliens would not be counted in the census.The 14th Amendment to the Constitution provides that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” The Supreme Court has made it clear that the term ‘persons’ in the 14th Amendment is not limited by citizenship status. The 14th Amendment unambiguously provides that except for some Native Americans, all persons within the United States must be counted in the decennial census. Nonetheless, President Trump has taken a different path as a result of which an estimated 10.6 million undocumented immigrants living in the United States can affect some very important states-most prominent of which will be California where 20% of undocumented immigrants reside. This will lead to California losing at least three House seats. Trump cites the Supreme Court’s decision in Franklin v. Massachusetts (1992) to argue that it is his discretion to settle the apportionment is more than ‘ceremonial or ministerial’ and is essential ‘to the integrity of the process.’” Trump is correct that Franklin reads federal law to give the president some authority over how the census is conducted. The president’s “duties” with respect to the census, according to Franklin, “are not merely ceremonial or ministerial; rather he has supervisory powers over his executive officers who conduct the census. Further Trump argues that there are many people in the United States who may be present but cannot be counted such as touring visitors and foreign diplomats. He fails to note that the term “persons in each State” has been interpreted to mean that only the ‘inhabitants’ of each State should be included,” Trump wrongly argues that determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment." He is also missing the point that he is not the one who gets to make this exercise of judgment and is seriously wrong when he thinks this power is unlimited. The Constitution has to prevail and its values should remain sacrosanct; there is no one other than the President who can and should ensure that.
Vijay Bhagwati, Esq.
Founder and Managing Partner
