WASHINGTON – Following this morning’s ruling in Donald Trump v. State of New York, Constitutional Accountability Center President Elizabeth Wydra had the following reaction:   

The Court today is plainly wrong to avoid ruling on the merits of this case simply because it is unclear how far President Trump will go in pursuing his unlawful policy of excluding undocumented immigrants from the apportionment base, as Justice Breyer pointed out in his dissent. The Constitution clearly prohibits carving undocumented immigrants out of the decennial census count used to apportion representatives to Congress, and that is what President Trump is trying to do—it really is that simple. Rather than address the text and history of the Constitution head-on, and hold the Trump Administration accountable to it, however, the six conservative justices dodged.

As the Constitutional Accountability Center explained in an amicus brief submitted on behalf of Members of Congress, the Constitution’s Census Clause requires the federal government to count all persons residing in the United States, regardless of their citizenship status, for the purpose of apportioning representatives to Congress. Accordingly, every administration for the last 150 years has counted all immigrants in the apportionment base for the purpose of allocating congressional representatives. What’s more, Congress has enacted legislation based on this settled constitutional understanding and required the President to include in the apportionment base all persons living in the United States, regardless of citizenship status.

This case presented a test for the Court’s conservative originalists of whether there is a principled core to their approach to the law. It presented them with an opportunity to embrace the text and history of the whole Constitution. But they chose not to take that opportunity. Instead, by punting, they left Justice Breyer to present the overwhelming case not only for why the Court should have decided this on the merits, but also why the Trump Administration’s policy is invalid.

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Resources:   

CAC’S case page in Donald Trump v. State of New York:  https://www.theusconstitution.org/litigation/donald-trump-v-new-york/ 

OP-ED: “The Supreme Court Must Choose Between Trump and the Constitution in the Census Case,” David Gans, Slate, November 30, 2020: https://slate.com/news-and-politics/2020/11/trump-v-new-york-supreme-court-census-case-test.html   

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org. 

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