TRUMP VS. NEW YORK: SCOTUS CONSERVATIVES AND THE DILEMMA POSED BY ORIGINALIST TEXTUALISM

By

Richard M. Blau, Esq.

December 2, 2020

On December 1, 2020, the Supreme Court of the United States (SCOTUS) conducted oral arguments electronically in the case of Trump vs. New York (SCOTUS Case #20-366). The case involves whether the president of the United States can order that the method for conducting the U.S. Census be changed to exclude so-called “illegal aliens,” i.e., immigrants who are not naturalized citizens, green-card holders or others residing in the country with the approval of the federal government. The Constitution provides that the census should calculate “the Whole number of Free persons” residing in the United States. In defending its position, the administration argues the novel concept that only persons who are in the country with the federal government’s permission should be counted.

The issues raised by this case implicate legal, practical and political concerns. That is somewhat typical of cases that make it all the way to the Supreme Court. However, this case is especially challenging for the conservative justices on the Court generally, and those who purport to be “originalists” or “textualists” in particular. Conservative ideology a it exists in America today is passionately against including undocumented immigrants in the census. Paradoxically, an examination of the Constitution by either an originalist or a textualist (and in the mode of the late Justice Antonin Scalia, a textualist committed to originalism) reveals that immigrants regardless of legal status were deemed "persons" residing in the United States, and therefore included in the census.

What's a conservative justice who adheres to the doctrine of originalist textualism to do?

THE DECENNIAL CENSUS

The U.S. Constitution requires the federal government to conduct a census every ten years to determine the population of the United States. Census data rare used to divide up seats in the House of Representatives. Congress has delegated the power to conduct the census to the Secretary of Commerce who must send a formal report to the president by December 31st containing “the tabulation of total population by States … as required for the apportionment” of House seats. On or before January 10th of the following year, the president must send a report to Congress that contains “the whole number of persons in each State,” as determined by the census, along with “the number of Representatives to which each State would be entitled.”

Throughout American history, the population numbers used to allocate House seats have encompassed all persons living in each state, regardless of their immigration status. The dispute argued before the U.S. Supreme Court on December 1, 2020, arose in July of this year, after President Trump announced that the total population used to calculate the number of representatives for each state would not include people who are living in the country without authorization. In a memorandum, the president instructed Secretary of Commerce Wilbur Ross to produce two sets of numbers for each state: (i) the total population as determined in the standard process by the 2020 census; and (ii) the total population as determined by the census, excluding “to the extent practicable” people who are not in the country legally. The president announced that the latter calculation would become the “population base” used for congressional apportionment.

THE RESULTING LITIGATION

Not surprisingly, lawsuits resulted. The American Civil Liberties Union and the State of New York each sued the president in federal court challenging the Trump Administration’s effort to exclude immigrants from the 2020 census. In August of 2020, the two cases were consolidated, and a three-judge court was appointed under 28 U.S.C. § 2284. In September of 2020, the three-judge court granted summary judgment to New York and the ACLU and entered final judgment. The court held that each group of plaintiffs had standing based on the likely effect of the president’s actions in deterring responses to the census, which in turn is likely to injure the constituents of New York and the ACLU in various ways including but not limited to causing one or more states to lose federal funds and rely on degraded census data needed for redistricting and many other important government functions. On the merits, the three-judge court determined that the president’s proposed policy violates the Census Act.

In October of 2020, SCOTUS agreed to hear the federal government’s appeal of the case on the merits, while postponing consideration of jurisdiction. On October 22, 2020, in a similar lawsuit filed in the Northern District of California by the City of San Jose, a three-judge court entered final judgment declaring the president’s actions unlawful. That court found that the plaintiffs there had standing because the president’s efforts to exclude certain classes of immigrants residing in the United States will cause them to suffer imminent and likely apportionment harm and loss of federal funds. The California-based three-judge federal court further concluded that the president’s proposed policy violated both the U.S. Constitution and the Census Act.

On November 6, 2020, in a third lawsuit, another three-judge federal court in the District of Maryland entered final judgment invalidating the president’s proposed census actions. In the case of Useche v. Trump, No. 20-cv-2225, the Maryland-based federal court determined that the plaintiffs there had standing because ongoing implementation of the president’s proposed census policy was substantially likely to cause them to suffer apportionment injury. On the merits, that court also concluded that the president’s actions violated the Census Act.

SCOTUS REVIEW

As the briefing of issues progressed before the Supreme Court, additional voices weighed in against the president’s proposed census policy. Amicus curiae briefs filed with the high Court included arguments against the administration’s proposed census policy from the State of California, members of Congress, the League of Women Voters, a group of former Directors of the U.S. Census Bureau and numerous public interest, faith-based and immigrants’ rights advocacy groups.

The Supreme Court heard arguments on December 1st, addressing President Trump’s efforts in the final days of his presidency to exclude unauthorized immigrants from the calculations used to allocate seats in the House. Most of the questions and comments coming from the justices, including hard questions from new Justice Amy Coney-Barrett, suggest the Court sees too many operational and logistical problems with the remedy Trump is seeking. Nevertheless, trying to second guess a SCOTUS decision from the oral arguments is like reading tea leaves, only less reliable.

The decision when it is delivered could be hugely important because, if the Court rules for the administration, it will overturn the 200+ year practice of counting all residents regardless of their immigration status. A decision to limit the census to citizens and officially-recognized resident aliens also could have political, as well as operational impact. Election and governance experts believe the exclusion of immigrants who are not naturalized citizens or green-card holders could shift political power from Democratic states such as California and New York to Republican states with few unauthorized immigrants in residence.

THE CONSTITUTIONAL CONUNDRUM

The dispute before the Court turns on the U.S. Constitution’s mandate for an official census to be conducted every ten years. Article 1, Section 2 of the Constitution states in part that: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, . . .” The importance of the national census is that the data are used to determine how many members of Congress are allocated to each state; the more “persons” in the state, the more members of Congress that state gets to elect. 

On the core question in the case, the administration is arguing that the term “persons in each state” should be interpreted to require “a sovereign’s permission to remain within the jurisdiction.” This would exclude from the official count literally millions of persons residing in the United States who are not citizens, naturalized citizens or green-card holders.

The fascinating aspect of this case is that it will pose a genuine challenge for the justices who appear to be conservative in ideology, but also assert that they are “originalist” or “textualist” justices.  

Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. 

Textualism is not easily defined, as there are several permutations of the jurisprudential doctrine. Generally, textualism is associated with the basic proposition that judges must seek and abide by the public meaning of the enacted text, understood in context. Textualists believe that objective intent of a law derives from the way a person conversant with applicable social and linguistic conventions would read the words in context. More commonly described, textualism represents a return to the old "plain meaning rule": The beginning, and usually the end, of statutory interpretation should be the apparent meaning of the statutory language. Note that a textualist need not embrace originalism. A textualist might insist on reading the statutory text in accordance with its meaning at the time of interpretation, as opposed to at the time of the law’s enactment.

Justice Antonin Scalia is viewed as the father of the current SCOTUS emphasis on originalist textualism. He started his movement to reject a statute's legislative history or modern contextualization in favor of relying slely on the law's language as written, with the meaning as understood by those who wrote the law, in the 1989 case Blanchard v. Bergeron. Scalia's concurring opinion joined the result but challenged the Supreme Court majority’s reliance on legislative history.  Justice Scalia’s opinions later evolved to reject reliance on legislative intent altogether, in favor of a focus on the text of the specific law at issue. In 1993, in Conroy v. Aniskoff, Justice Scalia wrote that: “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Scalia subsequently honed his thoughts into a set of lectures delivered at Princeton in 1995, which emphasized that “[t]he text is the law, and it is the text that must be observed.” Justice Scalia employed this textualist philosophy from that point forward, arguing that a court’s goal of statutory interpretation always should be to implement the meaning of statutory text as it was written and when it was written, not the intent behind the text or the current reinterpretation of that text.

Acolytes of the late Justice Antonin Scalia profess to adhere to his doctrine that the Constitution must be read and interpreted according to the meaning of the words as they were written, and as understood by the authors who wrote them, i.e., the Founding Fathers. SCOTUS observers generally consider Justices Thomas, Alito, Gorsuch, Kavanaugh and Coney-Barrett to be both originalists or textualists on the one hand, and conservative ideologists on the other.

But, here’s the conflict that poses: While conservatives favor limiting the census to residents approved by the sovereign, the Constitution is clear that “the whole number of persons” residing in the states should be counted. the FULL text of Article I, Section 2 of the U.S. Constitution reads as follows:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. (Emphasis added).

The proper originalist construction of the phrase “all other Persons” is unavoidable in light of the unique and well-documented history associated with whom to count and how in apportioning representation in the House of Representatives. For example, in rebuttal to the Administration’s argument on permission of the sovereign as a prerequisite to being counted, attorney Dale Ho representing the apppellee American Civil Liberties Union focused the justices on the meaning of "residence as the Framers of the Constitution understood it. Mr. Ho, ho heads the ACLU's Voting Rights Project, directed the justices to the fact that the very dictionary the government relied on for its case, the 1828 edition of Noah Webster's American Dictionary of the English Language, “defines residence as distinct from nationality” — the exact opposite of the administration’s approach. 

Moreover, several amicus curiae briefs filed in the case noted that the Three-fifth’s Compromise in 1787 is irrefutable proof that the Framers of the Constitution meant to count everyone not expressly excluded (i.e., excluding only “Indians not taxed”). The slaves were hardly in the United States by their own choice, and certainly did not enjoy the rights of citizenship, yet the slave states wanted to count them fully while other states did not. The authors of the Constitution ultimately compromised, agreeing to give each slave 3/5’s weight in the census representation calculations. For an originalist, this must be deemed persuasive evidence that all other persons meant everyone - except for untaxed Indians.

And why were the only Indians excluded those who were not taxed? Because taxation was an important element of the need for Census data. Also embedded in the Constitution’s census language is the notion of representative taxation. Everyone, regardless of immigrant status, should be considered when apportioning that tax obligation. This is especially justifiable because compiled evidence from multiple sources, including the Institute on Taxation and Economic Policy (ITEP), a non-profit, non-partisan tax policy organization, prove that so-called “undocumented immigrants” paid tens of billions of dollars in federal, state and local taxes last year. According to the advocacy group America’s Voice Education Fund:

"Undocumented immigrants paid $27.2 billion in taxes in 2017, $9.9 billion of which went to state and local governments, and had a total spending power of $200.6 billion. In 2013, Stephen Goss, the chief actuary of the Social Security Administration said, “we estimate that earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally.” 

To emphasize this point, young immigrants enrolled in the Deferred Action for Childhood Arrivals (DACA) program who were stripped of their legitimacy under the Trump Administration paid almost $2.2 billion in federal taxes, and $1.8 billion in state and local taxes in 2019. 

Justice Elena Kagan took careful note on this point, expressing through her questioning the very real concern that the administration’s proposal would likely identify – and thus exclude - several millions of unlawful immigrants, including more than 600,000 DACA recipients and over 3 million people currently in removal proceedings. “That sounds pretty feasible to me,” Justice Kagan said during the oral arguments. “We get very easily to 4 or 5 million people.”

CONCLUSION

What’s an originalism textualist to do? The evidence is overwhelming. In the Republic’s early days, many came to America willingly but with arguably fewer rights and privileges than either citizens or non-citizens enjoy today. Slaves, indentured servants and migrating foreign "aliens" resided throughout the United States in the late Eighteenth Century. Yet, the Framers of the Constitution did not see fit to exclude anyone based on those distinctions. In fact, a true originalist would concede that the newly-created United States of America had an open borders policy from its origin, and certainly on June 21, 1788, when the Constitution was ratified. In 1787 when members of the Constitutional Convention were drafting our nation’s principal governing document, there was no such thing as an “illegal immigrant.” Thus the Framers agreed that if anyone other than an untaxed Indian resided in these newly-created United States of America, that person was to be counted. Which is why Article I, Section 2 says count "all other persons," not just citizens.

It would be a radical departure from the Framers’ original meaning and the Constitution’s subsequent amendments for the Supreme Court to order making these distinctions now. Only a constitutional amendment to Article I, Section 2 can do that.

Whether the current justices can reconcile Scalian credo and conservative ideology to arrive at that conclusion remains to be seen.