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Supreme Court to hear case over Trump excluding illegal aliens from counting for congressional apportionment

Supreme Court to hear case over Trump excluding illegal aliens from counting for congressional apportionment

Argument November 30. Issue presented: “Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.”

The Supreme Court just announced that it will hear a case involving the Trump administration’s plan to exclude illegal aliens from counting for the purpose of congressional apportionment.

The government filing challenges lower court injunctions, and provided in part:


Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President shall prepare “a statement showing the whole number of persons in each State * * * as ascertained under the * * * decennial census of the population.” 2 U.S.C. 2a(a). It has further provided that the Secretary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are:

1. Whether the relief entered satisfies the requirements of Article III of the Constitution.
2. Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.

In an Order accepting the case and ordering expedited briefing and oral argument on November 30, the Supreme Court ordered:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits. The case is set for argument on Monday, November 30, 2020. Appellants’ brief on the merits, and any amicus curiae briefs in support of appellants or in support of neither party, shall be filed on or before Friday, October 30, 2020. Appellees’ briefs on the merits, and any amicus curiae briefs in support of appellees, shall be filed on or before Monday, November 16, 2020. The reply brief shall be filed by 2 p.m., Monday, November 23, 2020.


The jurisdictional issue mentioned in the SCOTUS Order is whether the plaintiffs [Democrat-run states] challenging the Memorandum had “standing” to sue in court. Trump argues they did not, and therefore the lower court injunctions were invalid since there was no legitimate case:

The decision below contains numerous Article III errors that each independently justifies a reversal, and all of which stem from a basic mismatch between the ordered remedy and the identified injury. Most important, the judgment will become moot before it ever has any constraining legal effect on the government. As discussed in more detail below, this alone is a sufficient basis for summary reversal, and the related Article III errors made by the district court confirm the need for this Court’s prompt intervention….

That theory [adopted by the District Court] reflects a fundamental mismatch between the court’s award of relief in the future (prohibiting the Secretary from including information in his report to the President) and a speculative present injury (the Memorandum’s alleged “chilling effect” on participation in the census). That mismatch gives rise to multiple independent Article III defects.

The Supreme Court could decide to vacate the lower court on jurisdictional grounds, or reach the merits.


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JusticeDelivered | October 16, 2020 at 5:59 pm

I hope Trump prevails, but even more important is to exclude all illegals from America.

Then, to the degree we actually have a use for them, carefully regulate how many are here. And please, plug the anchor baby hole.

    Folks “plug(ging) the anchor baby hole” is what is causing that mess.

    What concern sme is our immigration systems, both the legal and illegal ones, both seem designed to create castes of second class citizens.

    The illegal pipeline operates by creating an under class that is both sustained by state funds, while also be subject to arbitrary and capricous enforcement of the laws they are in violation of. I am given to understand that is is quite common for businesses that employee illegals to control them and get them to do dangerous work by threatening to report them to the authorities.

    The H1B visa system is also ripe with systemic abuse. Essentially, once a knowledge worker has an H1B visa, they are tired to that company and dependent on that company for the years it can take to go through the green card process. For the duration, the company can pay them well below market wage, and in some instances, they’ve actually imported actual caste structures from other countries into the corporate hierarchy.

    The whole thing is really messed up.

I am carefully optimistic. At different times and under different administrations there have been differing determinations of whom to count and for what purpose.

Assuming the Trump administration can brush aside the simplistic arguments of:
1. We disagree with the policy
2. We don’t like Trump

This maybe has a better than even shot. To my knowledge this decision has been made by successive administrations without controversy or court involvement. IMO, this is simply another example of ‘but Trump isn’t the President that we want to exercise discretion’ ‘the others were ok because they exercised their discretion in our favor’

These guys still don’t want to believe that DJT is the POTUS with all the power, prerogatives and discretion enjoyed by every other POTUS.

Q. “Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment”

A. Yes

Amy! Amy! Amy!

Antifundamentalist | October 16, 2020 at 6:36 pm

They are there illegally. Counting them IS permitting foreign influence in both our elections and our government.

It’s be wonderful if someone on here could anticipate and outline the chain of reasoning that one would use to find in favor of such an apportionment.

    clintack in reply to thetaqjr. | October 16, 2020 at 7:03 pm

    As a policy issue? It magnifies the votes of the legal voters in those (mostly Democratic) districts.

    As a constitutional question? The text just says to count the whole number of free persons.

      thetaqjr in reply to clintack. | October 17, 2020 at 11:24 am

      I think I understand how that change would affect the voting results.I don’t understand how
      Justices could logically slither their way into affirming that such would be constitutional.

      How about, yes, add them in at the rate of 1/10th of a person. Or is that too much? 1/50th? Affirm but render its affect negligible?

    Tom Servo in reply to thetaqjr. | October 17, 2020 at 5:21 pm

    If the justice use it using the principles of Original Construction, then clearly Trump loses. Constitution says “Persons”, not citizens, US Code says “Persons” are any homo sapiens residing here. (US Code 1 section 8) President doesn’t have the authority to change that by executive authority, he needs Congress on board with him.

    ON THE OTHER HAND – If they use RBG’s Living Constitution reasoning, then clearly the modern interpretation of “persons” must mean Citizens, and it’s easy for the Judges to just change the meaning of “persons” to what is politically helpful.

    So, all Conservatives should now hope that Scalia’s school of originalist school of thought it thrown out, and all of them agree that RBG really was right all along. It’s a Living Constitution.

Should they be counted? Absolutely not.

Will they be counted? Yep.

I don’t think SCOTUS will rule in Trump’s favor even with ACB on the court.

I can see Kavanaugh flipping and of course Roberts will flip. Certainly the three remaining lefties will vote against Trump.

    alaskabob in reply to TheOldZombie. | October 16, 2020 at 7:36 pm

    As Milhouse pointed out in the past the Constitution is “silent” on who is to be counted… citizens, aliens and/or uninvited guests. Representation should be for those “bound” to the country by the value of citizenship as all others are more or less visitors. Citizenship should bestow both obligation and reward.

      alaskabob: the Constitution is “silent” on who is to be counted

      The U.S. Constitution clearly states that “the whole number of persons in each State” are to be counted.

        RandomCrank in reply to Zachriel. | October 17, 2020 at 2:58 pm

        As much as I agree with those who don’t want illegals to be included for purposes of determining House seats, the plain text of Article II, Section 2, Clause 3 clearly states that all persons must be counted, and that the count must determine the apportionment of the House.

        If liberals don’t like the Electoral College or the second amendment, they should try to overturn those through the amendment process. Same goes for conservatives who don’t want illegals included for purposes of representation.

          Tom Servo in reply to RandomCrank. | October 17, 2020 at 5:24 pm

          I’m not as restrictive as you are – I think if Congress and the Executive agree to change the relevant sections of the US Code, then the SCOTUS will go along and it can be done without an Amendment.

          The Executive doesn’t have the power to do it on his own, though.

        RandomCrank in reply to Zachriel. | October 17, 2020 at 3:00 pm

        If “originalism” is anything more than a political slogan, the Supreme Court will reject Trump’s order.

          CommoChief in reply to RandomCrank. | October 17, 2020 at 4:04 pm


          Are you stating that anything less than a 100% headcount isn’t Constitutional? If you are you are wrong. SCOTUS has held multiple times that statistics and extrapolated data are Constitutional for conducting the census. There has never been a 100% accurate head count nationwide census in US history.

          Further, Congress delegated the census and apportionment to the Executive. Until Congress chooses to exercise it’s legislative authority to remove or modify that grant of authority to the Executive they are stuck with the consequences.

2smartforlibs | October 16, 2020 at 7:10 pm

So the first two weeks of each month this time of year. That means not much chance till after the election and confirmation of ACB.

    JusticeDelivered in reply to 2smartforlibs. | October 16, 2020 at 7:23 pm

    I still think that we should use human cannons mounter on semi flatbeds to return illegals.

    There should be a companion website with streaming videos, funniest, sadist, most tragic launch, flight and landings should be broadcast.

    Repeat offenders should be launched with much more power. We could even have special high power returns for criminal illegals.

    I bet many would chose to return on their own to avoid pubic exposure in the form of a return by cannon.

ACB will be an “originalist” wuss, just like R, G and K. No balls….

JusticeDelivered | October 16, 2020 at 7:26 pm

When will we drive illegals out of border states,especially California?

I wish I knew enough about the law to speculate on the legal issues. I have to say that -with absolutely no knowledge or justification- I would wonder if the drafters of Article III of the Constitution even considered the question and would therefore speculate that there is no language delineating a difference between citizens and residents. In such a case, I would imagine that the intent of the drafters and their consequent language would say to count everyone.

I would also speculate that there was never an intent or consequent language to allow a President to decline to count any specific group. Such power would clearly allow for political mischief. However, from the sound of this argument it seems like the battle is about whether there is Standing to even bring the question before the court.

I would appreciate it if anyone qualified to examine this would clarify things for me and (if not expecting to have to rule on it someday) would speculate as to the likely outcome.


    TheOldZombie in reply to Hodge. | October 17, 2020 at 12:47 pm

    Agreed. I think if the writers had to deal with illegals coming into the country they would have worded it differently. It just wasn’t a massive thing back then that they had to deal with.

    RandomCrank in reply to Hodge. | October 17, 2020 at 3:03 pm

    Article II, Section 2, Clause 3 is crystal clear. It mandates the actual enumeration of the whole number of free persons. I wish it wasn’t “persons” but in fact was “citizens,” but the wording is “persons.”

    If “originalism” is a principle and not a mere talking point, the Supreme Court will reject Trump’s interpretation, which is unconstitutional on its face.

IANAL but how will the SCOTUS ruling in Plyler v. Doe influence the decision. (Texas school case)

“The court majority rejected that claim but found that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.

    txvet2 in reply to SHV. | October 16, 2020 at 11:24 pm

    That was a 5-4 decision, so it isn’t quite cut and dried.

    CommoChief in reply to SHV. | October 17, 2020 at 10:43 am

    The problem with hanging one’s hat on Plyler is the scope.

    The kids were living in the district, their address was known. It they didn’t have a fixed address within that district they wouldn’t have been eligible to attend the school. If not eligible to attend based on address/school zone they wouldn’t have had standing.

    The issue here isn’t counting for purpose of inclusion in the numerical total. The issue is can POTUS exercise the discretion granted by Congress and enjoyed by previous POTUS.

    Simply being counted in the numerical total doesn’t necessarily mean one is included for apportionment. Overseas military personnel and their families have at various times been included in the total but excluded from apportionment.

    Prison populations have likewise been at times included and excluded from apportionment.

    This specific question is not directly ‘should illegal aliens’ be excluded from apportionment’. The primary question is does POTUS have discretion? Historically he does.

    The other key tie in will be ‘one man one vote’. SCOTUS is not going to want to overturn that principle. This principle is very much in play here. How can appointment be consistent with equal protection claims if district A has 800,000 people but only 100,000 citizens eligible to vote while district B has 800,000 people but 500,000 citizens eligible to vote?

    Clearly the voting power of citizens in district A is 5 times that of citizens is district B. Is SCOTUS really going to provide incentives to States who choose to look the other way, flouting Federal Immigration laws by rewarding these States with additional political power? If so, where does this end?

    Can Alabama import 10 million people during a census, throw them out after the census concludes and get additional Congressional seats by gaming this out at the expense of less representation for citizens in other states who lost Congressional seats to Alabama? If not why not?

    This is yet another example of Trump up ending the status quo by forcing the difficult questions to be answered v ignored.

I smell a rat

I’m now thinking it will be up to “We the People” to end this. By force.

    JusticeDelivered in reply to scooterjay. | October 17, 2020 at 12:14 pm

    Think about 30 million illegals dropping 3.5 children per family, another 52+million in the first generation, another 91 million the second generation.

    So generation one 30 + gen two 52,plus gen 3 91= 143 million alive at once during the second generation.

    All this because we have allowed them to get away with invading us.

Why not just let all the world determine our elections? Why not just have America declared a country no longer? Deny Americans citizenship in their own country? Because each of these people in fact vote in another country also. It is absurd.

doesn’t the word ” illegal ” define the issue?–coupled with the word ” alien ” would seem to further specify the persons who are NOT citizens of this country–why should anyone who chooses to ” reside ” within our country and enjoy the benefits thereof not in turn be obligated to participate in our system via becoming a citizen, paying taxes, serving in the military(if applicable), registering to vote, obeying our laws, etc.?

are we no longer a country of american CITIZENS?

“ Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State”

    CommoChief in reply to Zachriel. | October 17, 2020 at 12:44 pm


    Is an out of state College student from Kansas who attends College in CA supposed to be counted for Kansas or CA under your theory?

      CommoChief: Is an out of state College student from Kansas who attends College in CA supposed to be counted for Kansas or CA under your theory?

      Students are counted at their “usual residence,” which is typically the college where they attend. It’s also where most students vote. Note that this has been the case since the first census law in 1790.

        CommoChief in reply to Zachriel. | October 17, 2020 at 3:29 pm


        The place where the student usually resides is correct. However, don’t get ‘resides’ for census purposes confused with state of residence for voting purposes.

        One gets to cast a ballot in their State of residence; compliant with state voting registration purposes. In some cases an out of state student could be simultaneously:
        1. Resident for census in the State where they attend college
        2. Resident for voting purposes in their home state

        1. Resident for census purposes in home state because they commute
        2. Resident for voting in their home state

        Now add in where they pay state income tax and where their drivers licence is from, lots of issues.

        Here’s one. Student counted in state for census but out of state for tuition.

        Now I am sure that no household which sent a Student to an out of State college where that Student is counted for census purposes would ever claim that same Student on that households own census forms. Maybe we should check to make sure?

        Thinking on it maybe we should run a comparison search for out of state students between the home state and the state they attend college? Just to make sure they didn’t forget to call up and cancel their voter registration in the home state?

    JusticeDelivered in reply to Zachriel. | October 17, 2020 at 1:59 pm

    So, Zack is suggesting that we need to deport them now. 5,000 auto loading cannons firing 24×7, fully auto loading one minute repeat, could deport all 30 million in a bit under 5 days. Maybe 1000 cannons and 50 days would be ok?

The 14th Amendment, Section 2, sets a high bar:

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.

I’m no lawyer, but the plain reading of this is that everyone in a state, citizen or not, legal or not, is counted for purposes of apportionment. I suppose one could try and make an argument that illegal aliens are not taxed and therefore need not be counted, but aliens do end up paying some taxes of one kind or another, so that’s an argument that is going to fall flat.

I don’t know about the Article III issues, but the 14th would provide the Court all the justification they need to rule that the President’s order is unconstitutional.

    stevewhitemd: I suppose one could try and make an argument that illegal aliens are not taxed and therefore need not be counted, but aliens do end up paying some taxes of one kind or another, so that’s an argument that is going to fall flat.

    Undocumented aliens are subject to tax, and can be held to criminal and civil account, just as they are under the jurisdiction of other U.S. laws. Nor are they Indians in the context of the 14th Amendment, which refers to people living under their own aboriginal jurisdiction.

    So much for Originalism as a constitutional ideology rather than a veneer of justification.

      thetaqjr in reply to Zachriel. | October 17, 2020 at 11:38 am

      Is it not true that all of our trading partners are subject to taxes (tariffs), criminal offenses, and civil penalties, if those nations violate US trade laws?

      I propose that the Supreme Court apportion votes in a state in accordance with the amount of trade that the state Dow’s with foreign nations. Got any good Mao Tse,Deng lawyers out there?

      healthguyfsu in reply to Zachriel. | October 17, 2020 at 12:49 pm

      Wrong. By your justification, we should also count tourists in the state at the time of census.

        healthguyfsu: By your justification, we should also count tourists in the state at the time of census.

        As has been the case since the first census in 1790, people are counted at the place of their “usual residence.” The usual residence of an international tourist is their home country.

          CommoChief in reply to Zachriel. | October 17, 2020 at 3:47 pm


          So if person with a tourist visa isn’t counted though present does that also mean that a person present who’s tourist visa is expired would likewise not be counted?

          CommoChief: So if person with a tourist visa isn’t counted though present does that also mean that a person present who’s tourist visa is expired would likewise not be counted?

          If they make the U.S. their “usual residence,” then they must be counted per the U.S. Constitution.

          CommoChief in reply to Zachriel. | October 17, 2020 at 4:40 pm


          And there we have the logical breakdown in your argument for inclusion.

          A person unlawfully present in the US cannot unilaterally decide that they ‘reside’ anywhere.

          It is one heck of a logical pretzel to make your case:
          1. Possess tourist visa = not counted in census
          2. Possess EXPIRED tourist visa = must be counted in census

          Clearly not every person present during the census is eligible to be counted in the census. You admit that fact. Now we are moving to the categories of persons present who should be counted and categories of persons who should not be counted.

          As for apportionment one of my questions to any State challenge would be if on the CT:

          So your State client believes they will be harmed during apportionment because many federal funding formulas disburse based upon population count?

          Do you charge out of state tuition?
          Why is that lawful since the out of state student is counted for the census and thus funding formulas in your state?
          Isn’t that an equal protection violation? There isn’t any federal funding loss to your state, in fact there is a gain.
          How do you justify that unequal treatment between members of the exact same circumstance; students attend state colleges?

          So really it’s a question of political power not funding?
          Ok, please tell us why another state, say Montana, couldn’t import the entire population of Argentina for a one week stay, then upon expiration of their tourist visa count them for the census? What limiting principle exists?

      thetaqjr in reply to Zachriel. | October 17, 2020 at 1:27 pm

      What do you mean by “original jurisdictions”? Aboriginal jurisdictions didn’t have the means to define territories geographically, and I’m almost positive that they weren’t developed anything similar to jurisprudential thought for “original jurisdictions “ to have any meaning at all.

        thetaqjr: Aboriginal jurisdictions didn’t have the means to define territories geographically

        Indians have been recognized as having their own separate jurisdiction under U.S. law and treaty since the beginning of the U.S. And yes, people in Indian Country are more than capable of understanding the concept of jurisdiction.

          thetaqjr in reply to Zachriel. | October 17, 2020 at 4:43 pm

          I did not …

          I did not try to say that they were incapable of understanding it. I’m saying that in the state of development that Western explorers found them, they had not developed any thing close to what took two thousand years for Western thought to develop. They didn’t have the necessary language to employ, nor had they developed writing skills to communicate it, if they had written language at all.

          Shoot, we’ve been at it for 200 years here, and we’ve not mastered its intricacies, and very few people, even on this thread, as far as I can read, have revealed knowledge of the conditions necessary Rule of Law to guide us in these matters.

          Tell me, if you can, which Indian tribes, anywhere in the Americas had the remotest notion of freedom from arbitrary arrest? He’ll, most of the world today rejects such notions. Artifa and BLM? And recognized other minimum requirements regarding freedom, such as freedom of movement and freedom to work without interference from chieftains and their counsels, who like as not, believed everyone in the tribe was constrained by edicts issued by some sun god or rain god.

      JusticeDelivered in reply to Zachriel. | October 17, 2020 at 2:01 pm

      “can be held to criminal and civil account,”

      And they are criminal illegals.

Citizen wasa known defined concept in the late 1700s as they never could imagine it wouldn’t be 200 years later

If the Constitution is taken at its plain word, then EVERYONE living in a jurisdiction should be counted – like it or not. And I don’t but there it is.

    CommoChief in reply to DSHornet. | October 17, 2020 at 12:33 pm

    Well if we wrote the Constitution yesterday and there had been no intervening case law then you would be 100% correct. However, there is abundant case law both direct and indirect surrounding this issue that would be impacted as well by the CT.

    There is a distinction between a persons inclusion in the Census and that persons inclusion for apportionment.

    A few problem areas that cast doubt on the ‘if present they have to be counted for the census.
    1. Military personnel in the USA. Are they counted in the district of their Home of record or where they are stationed?

    2. Military personnel stationed in say Germany. Obviously they are not physically present in a State. Do they count?

    3. How about someone not in the USA when the census taker comes to the door? A student or Military member or anyone else temporarily absent from their home for say 9 months of the census year? Say from January thru September out of country?

    4. Prison population. Do they count in the location of the prison or their last known address prior to incarceration? What if they were transient, got off the bus from Kansas and immediately stabbed/murdered someone in California? Does that person count for CA, Kansas or the State where incarcerated?

    5. Student visa holders from another nation? They are present in a state during the census do they count? If mere presence is the criteria then why not?

    6. Overstayed Visa. Again if mere physical presence is the standard shouldn’t this person count?

    The point here is that mere physical presence or absence has never been the absolute immutable standard. There are many instances of nuance in a long history of determining whether a particular population of persons are counted for the census.

    Apportionment and census are related issues but not the same. Apportionment flows from the census but is tempered with equal protection questions, one man one vote.

    This is a much more complex set of interconnected issues than we might think at first blush.

Citizen was well defined and understood at the time of the constitution. What wasn’t defined or understood was the concept of illegal aliens. Everybody that migrated to the US at that time came across the atlantic and were admitted or not at the ports. So technically the framers never considered people living here that were not either Citizens or legal immigrants.

Democrats: pack the states and the courts! Pretty much anyone who is outside of LPR and up should be considered temporary (or worse).

Hold on… why should non-citizens be counted in the first place for representation purposes?! If the rationale is that non-citizens have a right to representation, then why can’t I vote in other states where I either have a property interest or paid taxes to? Shouldn’t I have the right to elect representatives who use my tax money or affect my property interests?

    CommoChief in reply to Guardian79. | October 17, 2020 at 3:02 pm


    I personally don’t see.anything wrong with a person voting in local and state elections where they have a nexus of property owned. Maybe even income if you work in a city that levies income tax but reside outside the city limit. After all why should a Citizen be directly impacted by public policy choices they had no voice in enacting?

    That logic is what has lead to some jurisdictions granting local voting rights to persons not lawfully present.

    That said, you are conflating several issues. Federal v State and local representation, taxes, property ownership.

    It is normally held that persons not eligible to vote; children or ‘Imbeciles’ are represented via the votes of their family.

      thetaqjr in reply to CommoChief. | October 17, 2020 at 5:09 pm

      I personally don’t see anything wrong with 15-yr-olds to vote. It’s an arbitrary line of division anyway.

        CommoChief in reply to thetaqjr. | October 18, 2020 at 10:06 am

        Well yeah, drawing a legal point at which we say ‘yesterday you were a child but today you are an adult is inherently arbitrary.

        IMO, 18 years old seems a reasonable compromise. However we should make that determination and get out of the way. Meaning whatever age we choose at that point you are an adult: vote, join the military, sign a contract, purchase liquor, ‘transition your gender’. Whatever floats your boat.

Say you godd good and drunk, went driving across town, and somebody T-bones you when they were running a red light at an intersection.
You know who gets in trouble?
You do.
You had no right to be on the road.
You didn’t exist as a legal driver.

By that logic, Illegal Aliens have no rights either.
And that includes the right to representation.