Who Wrote Trump's Census Memorandum?

In his recently issued "Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census," President Trump asserts that he has the authority "to exclude from the apportionment base [for congressional representation] aliens who are not in a lawful immigration status under the Immigration and Nationality Act." The ugly sentiment obviously comes from Trump himself, but in this case he was surely assisted by Justice Department lawyers who should have known better than to enable such a blatantly unconstitutional gambit.

As explained by Marty Lederman on Balkinization, Trump's Memorandum does not affect the way that the Commerce Department will conduct the 2020 Census, or how the actual results will be tallied. Rather, it is Trump's announcement that he will report a different set of numbers to Congress for the purpose of determining how the 435 seats in the House of Representatives will be allocated among the states under 2 U.S.C. § 2a(a). The problem, of course, is that Trump's proposed method -- excluding undocumented immigrants -- flatly contradicts the language of the Fourteenth Amendment: “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.”

According to Lederman, who was Deputy Assistant Attorney General in the Office of Legal Counsel under President Obama, Trump's plan would violate both the Constitution and the federal statute on congressional apportionment. On Vox, Ian Millhiser describes the proposed policy's "breathtaking unconstitutionality," supported by no "legal authority whatsoever." Mark Joseph Stern minces even fewer words on Slate, calling the Memorandum "morally repulsive, illegal," and "the new Three-Fifths Clause." A quick survey of conservative friends found no one who thought it would be constitutional to exclude persons from the apportionment calculation on the basis of immigration status.

But debating the legality of the Memorandum is missing the point. It is not intended to be a legal document; its chances are hopeless in court. It is intended to be a campaign document, staking out one more anti-immigrant claim that will motivate Trump's base. Even people who are fed up with Trump's incompetence in dealing with the pandemic may come back to the electoral fold for the sake of nativism. The starkly political nature of the Memorandum is obvious from its language, which goes far beyond any legal justification:

 Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.  States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.  Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.  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.

In other words, the purpose of the plan is to punish Blue states, especially California, by depriving them of representation in Congress (and therefore in the Electoral College). Slate's Leon Krauze believe that this "morally abhorrent" tactic will backfire, but Trump has used it before with great success. Still, it is one thing to campaign on a promise of wall-building, while decrying Mexican "rapists" and launching an ethnic attack on a federal judge. It is something quite different to issue a blatantly unconstitutional directive simply to gain an electoral advantage.

This brings us to the unnamed attorneys who dressed up the Memorandum in the thinnest veneer of legal language. As the Memorandum would have it, Trump has the authority to remove over 10 million people from the category of "resident" or "inhabitant" (both terms have been used in the past) because of precedents excluding tourists and diplomatic personnel from the apportionment count. This isn't legal reasoning; it is legal subterfuge. In essence, the lawyers behind the Memorandum are saying that because "whole number of persons" may exclude a handful of people who are just passing through the country, it can be reinterpreted to exclude millions who have been living here for years.

Rule 2.1 of the Rules of Professional Conduct provides,

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

"Independent professional judgment" and "candid advice" surely would have required informing President Trump that his plan is unconstitutional, and thereafter declining to give it cover. A lawyer may make a novel or unconventional argument when defending a criminal case, or in a good faith effort to obtain an "extension, modification or reversal of existing law," but there is no similar exception for political posturing in an election year. Trump's political stance is unsurprising. The lawyer's who helped him draft it should be ashamed of themselves.

Comments

[A non]

Aren't most of the illegals "Indians not taxed"?

[A non]

Moreover, since, under the safe haven laws, most Blue cities lock in the illegals for the systematic violation of minimum wage laws, max hour laws, etc., within them, are their governments, and/or all of the relevant employers, in violation of the 13th Amendment?

How can you pretend to take the moral high ground when what you're really doing - hand-in-hand with the Republicans - is creating a neo-serf class in America? Do you really think most of the rest of the world believes that YOU'RE not racists for doing this?