In today's Wall Street Journal, David Rifkin and Gilson Grey have an op-ed arguing that Section Two of the Fourteenth Amendment gives the President the authority to put a citizenship question on the census form. I have some expertise on this subject, as I wrote an article last year on the relationship between Section Two, the Census, and congressional reapportionment.
Rifkin and Grey are half-right. Section Two does give the President the authority to add a citizenship question, but only if the information required by Section Two about voting rights is also solicited. The model is the 1870 Census, which asked all of questions posed by Section Two. Rifkin and Grey are instead saying that one part of Section Two (citizenship) is mandatory while the other parts (on the denial or abridgment of suffrage) are optional. That cannot be right. They stand and fall together. (Indeed, their quote from John Bingham on Section Two confirms this point.)
Another problem, of course, is that they only thought of this argument today. The Government will be hard pressed under the APA to use Section Two as a lawful justification now. (Alas, neither the DOJ nor the Commerce Department ever cited my paper or asked me about the analysis.)
So nice try, but no cigar.
Query: To what extent, if any, did the 14th A amend the 1787 Census clause, whether directly or indirectly?
ReplyDeleteMarty Lederman's post on the Census Con cases reveals quite a bit about about DOJ. Perhaps Trump has his Roy Cohn at DOJ. The silence of the SG is deafening. Over the years I have read that a goal of the Constitution was to prevent corruption. Might this lead to a constitutional crisis?
I guess I don't see how 14.2 gives *the president* the power. Aside from 14.5, which grants enforcement power to Congress, Art. I.2.3 expressly states that "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 [i.e., Congress] shall by Law direct." Unless Congress directed a citizenship question, I don't see how the President can add it.
ReplyDeleteI'm sure Gorsuch is on it, Mark, given his concerns about agency discretion.
ReplyDeleteAnyway, the "mandatory" part is curious. The text, which like the beginning is a good place to start, says:
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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section Five of the amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." So, as Mark notes, Congress has the power to enforce and the executive would merely be administrating its dictates here. With discretion as is usually the case with agency execution of congressional laws.
WSJ is pay-walled but collection of the data might be required to enforce the never used penalty. But, enforcing for this purpose to protect "the right to vote" was not the reason for the question. Even if it was, it seems a dubious means ("appropriate") to do so, especially given expert analysis on how it suppresses an accurate count and the equal protection violations alleged among other things.
A page of history and text for that matter does help clarify such specious arguments.
I'm not following this. Let's suppose that a clause of the Constitution requires the answers to questions A, B, and C, in order to be put into effect.
ReplyDeleteAll three questions were formerly asked, and then discontinued. The administration proposes to restore question A.
I'll agree that this is a constitutionally infirm position, but how is it not properly remedied by restoring questions B and C, rather than prohibiting question A?
Several reasons:
ReplyDelete1. The restoration must be accomplished by Congress, not the President.
2. 14.2 doesn't *require* any of the questions, nor does it require the use of the census to determine the answers.
3. The sole purpose of the language in 14.2 is to enforce a penalty that has never been enforced and will not be enforced now.
4. The DOJ previously told the courts that the issue must be determined by June 30 in order to meet printing deadlines. Having made representations to the courts upon which the courts relied in expediting the case, the doctrine of judicial estoppel precludes them from arguing now for a later date.
5. The pretexts given for including the question were false, which undermines the credibility of any new justification.
The 14th Amendment? Mark is correct. The Constitution grants Congress the power to direct the "actual enumeration" and to enforce the 14A. POTUS may only enforce the resulting laws of Congress.
ReplyDeleteThere is no need for the executive to go there. As recognized in the Commerce decision, Congress has already enacted laws permitting the Sec Commerce to ask a citizenship question based on "political considerations." The Court also noted an agency may have stated and unstated reasons for an action.
Following this roadmap, Commerce needs to add a laundry list of previously unstated reasons the national and state governments could use the resulting citizenship data, including providing state legislatures the data to district by citizenship as suggested by the recent Evenwel concurrences and expressly dodged in the majority opinion. Just one reason needs to fly with a majority of the Supremes.
"1. The restoration must be accomplished by Congress, not the President."
ReplyDeleteIt has been, by virtue of Congress delegating the authority to decide what questions are asked. It's not like Congress enacts each Census questionnaire as a bill, dictating in detail what questions are to be asked. They delegate.
Entirely too much, but still, they delegate.
As for your other points, sure. I'll gladly concede points 2 and 3.
On point 4, the representation they made was qualified in such a manner that they're not entirely barred from this; They didn't say a later date was impossible, just that it would be costly, and require them to find extra funding.
On point 5, I agree, any new justification will now be subject to much greater scrutiny. Not necessarily fatal, though the odds of making it past the lower court were never good to begin with, and are now negligible.
In fact, I found this pretext, (And, yes, obviously a pretext.) curious, given that non-pretextual justifications were readily available. I wonder who exactly drove that decision, and what their real motives were? Was the administration given some (deliberately?) bad legal advice?
It wouldn't be the first time underlings deliberately sabotaged a Trump initiative they didn't like.
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ReplyDelete[Since my previous deleted comments might still be seen, I decided to waive a rebuttal.]
ReplyDeleteIt's good to have reasonable discussions of what's legal.
ReplyDeleteBut events on the ground suggest the Trump administration won't limit itself to reasonable or legal.
“It’s extraordinary and downright bizarre to see the government parachute in new lawyers at this late stage of the litigation,” says legal scholar Joshua Matz. “If past is prologue, this may indicate that we’re about to see some extremely sketchy moves that the existing team was unwilling to take for professional or reputational reasons.” [from Jennifer Rubin's column today]
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ReplyDeletejpg: “It’s extraordinary and downright bizarre to see the government parachute in new lawyers at this late stage of the litigation"
ReplyDeleteIt is refreshing to see a POTUS who will maintain a perfectly legitimate fight the bureaucracy would prefer to surrender.
Is the DOJ part of the "bureaucracy"? Is the Office of Solicitor General? Is the Department of Commerce? Is SPAM suggesting that appoints/career attorneys in these Executive branch groups incompetent or too principled? Perhaps SPAM looks upon their replacements as Trump's Roy Cohn as "refreshing." SPAM probably has libertarian wet dreams when he thinks of Nixon's Saturday Night Massacre.
ReplyDeleteOf course, there could have be a "legitimate" proposal from the git-go but there was that "pretext," unclean hands, not to mention the evidence that was not before SCOTUS that seems to have initiated the citizenship question for Republican political purposes. But that evidence may follow in subsequent court proceedings.
Is it possible that some of the attorneys being replaced were concerned with misrepresentations to SCOTUS and perhaps trial courts?
The role of Trump may be additional obstruction of justice.
Shag:
ReplyDeleteYes, OSG, Justice and Commerce are all part of the bureaucracy.
Any career bureaucrat in these agencies who worked against the long standing citizenship question, which the Supreme Court unanimously held was proper, is not acting out of principle, but is almost certainly a Democrat partisan.
Equitable estoppel does not apply here, which is why the case was remanded back to the agency.
More likely. the prior attorneys were replaced because their credibility was shot with courts who believed they were offering pretext. New arguments require new attorneys.
"Any career bureaucrat in these agencies who worked against the long standing citizenship question, which the Supreme Court unanimously held was proper, is not acting out of principle, but is almost certainly a Democrat partisan. "
ReplyDeleteThis is laughable. The Census is to be an enumeration of all persons and the question is unquestionably going to subvert the goal.
The only people for the question are then GOP partisans hoping for an undercount. Every accusation is a confession with conservatives these days.
"This is laughable. The Census is to be an enumeration of all persons and the question is unquestionably going to subvert the goal. "
ReplyDeleteAs does every question beyond, "How many people reside in this house?"
Are Trump's acting cabinet officers heading the establishment? Who appointed the Solicitor General who made certain representations to SCOTUS? Surely he wasn't part of what SPAM would categorize as the "establishment." The SG possibly stuck his neck and reputation on the line to get SCOTUS's attention. Might that have been at the behest of Trump, or to soothe the narcissist? As I noted earlier he silence of the SG is deafening. Was the SG another toss by Trump under the bus of one doing Trump's wishes? Can an SG obstruct justice? Might the Chief raise an eyebrow or hope that Trump's "disestablishment" will utilize the GPS the Chief provided in his opinion for the Court in the Census Con case? Do we have another Harding Administration?
ReplyDeleteQuery: was Trump hoping that America would lose in the World Cup finale? Did lockstep SPAM do likewise?
By the Bybee [expletives deleted], when was the last time the "long standing citizenship question" was included in a census? SPAM doesn't like the Civil Service, preferring the uncivil patronage service of to the victor goes the spoils, unless it's president who's a Democrat.. Look at the turnover in the White House, with Trump preferring "acting" department heads providing Trump more control.
Regarding the "pretext" in the Chief's opinion, that came from Wilbur Ross, not the attorneys. SPAM can't keep the facts straight.
I early await Marty's next post.
That's silly. Do you really want to argue that 'is there indoor plumbing in this house' is going to discourage enumeration as much as 'is this person a citizen' in the current climate?
ReplyDeleteThis question is, of course, like asking 'how many firearms, exactly, does this person own?' Would you be fine with that question?
BD: Any career bureaucrat in these agencies who worked against the long standing citizenship question, which the Supreme Court unanimously held was proper, is not acting out of principle, but is almost certainly a Democrat partisan.
ReplyDeleteMr. W: This is laughable. The Census is to be an enumeration of all persons and the question is unquestionably going to subvert the goal.
Zero evidence this occurred during previous several decades Census asked the citizenship question. My Italian great grandfather Donato had no problem answering the question during at least two censuses for which I obtained copies.
Telling how the career bureaucrats and the Democrats are making the same exact unfounded claim.
"My Italian great grandfather Donato had no problem answering the question during at least two censuses for which I obtained copies."
DeleteAs I understand it, a citizenship question has never been on the short census form that is sent to every household.
Your great grandfather must have randomly been issued a long census form on two occasions.
Was it a fictional Presidential candidate who said: "I'd rather be right than President"? Now with Bush Jr. we have a person who has demonstrated that he's rather be President than be right.
ReplyDeleteFifteen years pass and things are the same. With more consoling.
https://balkin.blogspot.com/2004/07/not-your-founding-fathers-checks-and.html
"Zero evidence this occurred during previous several decades Census asked the citizenship question."
ReplyDeleteTimes never change!
Let's examine how partisanship promotes idiocy.
ReplyDeleteDoes any non-idiot not realize that, at the very least, even if it's false, the media is going on a lot about a 'crack-down' on undocumented migrants?
Does any non-idiot not realize that, therefore, a question about undocumented migrants is going to make people hesitant to answer accurately?
I've said this before, I'm by nature a 'conservative,' but what conservatives today want from people is for them to be idiots.
Shag: Are Trump's acting cabinet officers heading the establishment?
ReplyDeleteSo, now we are moving from career bureaucrats to political appointees? Having a discussion with you is like playing whack-a-mole. FWIW, Trump has indeed made multiple political appointments from the GOP establishment.
Who appointed the Solicitor General who made certain representations to SCOTUS?
Before the Commerce decision, past progressive Courts granted nearly complete deference to the pretexts offered by the bureaucracy for their decrees. Almost certainly, the OSG went to court expecting more of the same, when Justice Roberts reset the legal table on them. The establishment bonafides of the government's legal team had nothing to do with it.
The partisans on both sides of this issue are missing the entire point of the Roberts alliance of convenience with the Democrat minority. The Chief Justice managed to get all of them to agree to withdraw the traditional deference and dig deep into the bureaucracy's reasoning - a very anti-progressive holding taken for very short term political convenience, given he also laid out a clear road for commerce to take to reinstate the citizenship question. Brilliant. I expect the Chief Justice to quote this decision every time a challenge to the bureaucracy is granted cert.
"Does any non-idiot not realize that, therefore, a question about undocumented migrants is going to make people hesitant to answer accurately?"
ReplyDeleteThe census department's own internal study showed that asking the question would make the census less accurate. That was part of the evidence at trial.
HD: Zero evidence this occurred during previous several decades Census asked the citizenship question.
ReplyDeleteMr. W: Times never change! ... Does any non-idiot not realize that, at the very least, even if it's false, the media is going on a lot about a 'crack-down' on undocumented migrants? Does any non-idiot not realize that, therefore, a question about undocumented migrants is going to make people hesitant to answer accurately?
I set the table and you sat right down.
You admit that you Democrats are really concerned illegal aliens will not participate in the census so Blue states and cities can use them to leverage more taxpayer cash and House seats.
Now that we have established your true motives, there is still zero evidence a citizenship question will cause illegal aliens to participate in the census at lower levels than is already the case. The government employees taking the census have not changed unto ICE agents. If illegals were willing to speak with generic government employees before, the citizenship question will not change that. Furthermore, there is no "question about undocumented migrants." The citizenship question does not ask about legal status.
Of note, the census asked the citizenship question of everyone through 1950 and in the long form through 2000. All of those enumerations were considered to be accurate.
Realistically, if the Republicans really wanted to suppress illegal alien participation in the census, there is no need for a citizenship question. All GOP operatives need do is simply spread rumors ICE agents are identifying themselves as census workers to arrest illegal aliens.
As I noted before and the professors here are beginning to pick up on, the true GOP purpose is to allow state legislatures to district based on citizenship, removing Democrat leverage in at least red states. What Fishkin called the "Evenwal Gambit."
National Review chimes in:
ReplyDeletehttps://www.nationalreview.com/bench-memos/census-citizenship-question-14th-amendment/
I like the NR when they are right. Ha ha. (w/o granting they are 100% so here)
Why the Wilbur Ross pretext? Why not look back in time for an earlier Census with a citizenship question? Was the pretext for the purpose of avoiding racial discrimination charges? Such pretext was a fraud upon SCOTUS and the lower courts. When you get caught with your hand in the cookie jar, just ask for a glass of milk?
ReplyDeleteThe National Review article linked to by Joe is an interesting critique of the Rifkin/Grey OpEd.
I wonder is discovery in the trial courts will address the SG's role is convincing SCOTUS to take the case from the trial court before court of appeals review.
SPAM seems reluctant to concede that Trump political appointees headed department containing the establishment. Trump might want to do away with Civil Service. He wants to curb the press, including, now, even Fox.
Query: Might Trump grant a pardon to Jeffrey Epstein, a fun guy for Trump.
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ReplyDeleteShag: Why the Wilbur Ross pretext?
ReplyDeleteI suspect Ross believed a VRA pretext gave Commerce the best chance to survive a cherry picked Obama judge Like Furman.
When will Republicans learn they can't win rigged games?
Just be honest, make a viable record at trial, appeal and get the lower court ruling reversed. It takes longer, but makes great binding precedent for the future.
SPAM seems reluctant to concede that Trump political appointees headed department containing the establishment.
Huh? The vast majority of Trump's appointments are establishment.
The biggest problem faced by any POTUS seeking to reform the bureaucracy is the folks who are most qualified to navigate the swamp are themselves swamp creatures.
One of the reasons I am convinced we cannot elect a solution to progressive misgovernance. We need a Convention of the States from the outside to strip the bureaucracy of absolute power and cut up the behemoth's credit card, along many other reforms.
SPAM pulls his "I suspect ..." out of his derriere.
ReplyDeleteThe rigged games were"blessed" in the Chief's gerrymander opinion with the political question doctrine.
SPAM's "Just be honest ..." like the SG convincing to take the case from the trial court without going through circuit review.
So SPAM believes Trump's appointments are the establishment?
Trump, the fascist according to SPAM, promised to drain the swamp. Instead Trump enlarged the existing swamp.
Fareed Zakaria had a rect column in the WaPo on George Will's new book on conservatism. Fareed compares growth and progress that conservatism could not accomplish. SPAM continues with his wet dreams of the Gilded Age of the late 19th century as America's best days. Both Will and SPAM to go back to what they think were the good old days that neither of them lived in. Maybe SPAM sees himself as the big fish in his quaint mountaintop community relying upon plea deals for alleged drunks to permit his trolling with a past that was not so great. The bureaucracy includes the FDA =why do we need a pure food law, clean air, clean water? Markets don't provide these, it takes government and a bureaucracy. SPAM's libertarianism=selfishness uber selflessness. SPAM is a political fossil. Perhaps in time SPAM will revert to his former anarcho-libertarian 2nd A revolutionary mode if he doesn't get his convention.
I don't know where you got that impression. As you can see here, it's been asked of every household in some form on every census from 1820 to 1950. Only the last four censuses relegated it to the long form.
ReplyDeleteIt might be worthwhile to take a closer look at the administrations in charge of the census for 1950, 1960, 1970, 1980, 1990, 2000 and2010, the post-WW II years to determine the extent to which political partisanship might have been involved in structuring the census for partisan political purposes. Were there pretexts? Were there legal challenges in the courts? If so, how did they turn out?
ReplyDeleteBrett's response seems to jump over two census years. Brett, why the pretext by Wilbur Ross? Was it to provide cover for potential claims of racial discrimination on behalf of a president who promised to make America white again? I'm sure Brett remembers Trump's escalator down opening of his 2016 campaign rant against Mexicans that lured Brett to descend with the former president of Trump U.
HD: "My Italian great grandfather Donato had no problem answering the question during at least two censuses for which I obtained copies."
ReplyDeleteBlogger Unknown said...As I understand it, a citizenship question has never been on the short census form that is sent to every household. Your great grandfather must have randomly been issued a long census form on two occasions.
Back at the beginning of the 20th century, census takers apparently went from residence to residence and filled out the information on government forms by hand. I have copies of a couple of these. Citizenship was about the only extra question asked on these forms.
Shag: It might be worthwhile to take a closer look at the administrations in charge of the census for 1950, 1960, 1970, 1980, 1990, 2000 and 2010,
ReplyDeleteAs Mr. W admitted, the real issue today is the use of illegal aliens to leverage House districts and population based federal welfare state payments. This leverage started reaching critical mass in the 1990s.
"Brett's response seems to jump over two census years."
ReplyDeleteAsk NPR about it. I was relating their report on the matter. I have no idea why they omitted those two years.
"Brett, why the pretext by Wilbur Ross?"
I've asked that question myself. I wonder if the administration was given bad legal advice; It seems the DOJ legal team were remarkably eager to throw in the towel, they may have been playing to lose.
"Was it to provide cover for potential claims of racial discrimination on behalf of a president who promised to make America white again?"
You're confusing your fantasies with reality again, Shag.
Brett, I have ho confusion or fantasies regarding you. Really, you are mentally still pulling red radishes unable to compete with Mexican farm laborers.
ReplyDeleteLike SPAM, Brett's response to Wilbur Ross' pretext is straight out of his derriere, as is much of his thought. Ross did not get the idea of the citizenship question from the DOJ as he claimed. Who gave the Trump administration bad advice? Brett suggests the DOJ. Proof? Let's hear from Brett's derriere with details. What about the role of the SG convincing SCOTUS to take the appeal from the trial court sans circuit review? I wonder if Brett read, and more importantly understood, Marty Lederman's earlier detailed post on the Census Con case.
Shag, if you think Trump ever said, "Make America White Again", you're suffering from an inability to distinguish a smear from reality. Of course, I don't think you actually believe Trump said any such thing, you just enjoy accusing anybody who disagrees with you of being a racist.
ReplyDeleteYou do this sort of thing all the time, and it is frankly quite annoying. Are you simply incapable of discussing anything on its own merits anymore, instead of descending into ad hominem and what you imagine to be sly insinuations of racism? I seem to have a vague memory of you actually engaging with topics years ago.
You really strain my own determination to engage with you, you're becoming such a parody of yourself these days.
What is my proof the DOJ gave Trump bad advice? None, which is why I merely wonder if it was the case, rather than asserting it. But it does seem conspicuous that the DOJ legal team were in a hurry to surrender the case without consulting their client first. And the administration seems dissatisfied with them, too, and has now replaced them.
Deliberately throwing cases is not an unheard way of getting things done at the federal level, and it wouldn't be the first time career legal staff weren't playing to win.
I don't know why there is an assumption "bad advice" was given as compared to the basic conclusion that they had partisan and racial (which interacts here) related reasons here, but both given the clear requirements of the law & how this would look bad politically (especially making it harder to obtain an accurate count to advance Republican Party ends) that a conceit was made instead. Mr. W. might blatantly suggest a sort of ideological blindness.
ReplyDeleteThis is not some sort of confusing thing and on some basic level it isn't really surprising. It's against the law in place but a cynical/realistic sort wouldn't be surprised by it. Trying to game the system to a cynic is something "everyone does." But, somehow, there is a felt need to think somehow Trump was betrayed. In part because of having incompetent underlinings or something. On that front, you reap what you sow. Overall, yet again, somehow, Trump gets special dispensation while the claim is he is being unfairly targeted.
===
As you can see here, it's been asked of every household in some form on every census from 1820 to 1950.
The very link says: "In fact, the U.S. census has never before directly asked for the citizenship status of every person living in every household."
Later: "only a small sample of households were asked." As to the change, perhaps there was more concern later on about the effects, including giving changing demographics and so forth.
The 2020 question would change that. So, I understand Unknown's confusion.
"You admit that you Democrats are really concerned illegal aliens will not participate in the census so Blue states and cities can use them to leverage more taxpayer cash and House seats."
ReplyDeleteThere is no admission to anything other than what the plain law as written requires, a complete enumeration of all *persons.* The rest of your twaddle is just how your sick partisan mind processes that.
Joe, you're a nice contrast, you actually engage. You still tend to make that assumption of racism, but it doesn't comprise the whole of your argument.
ReplyDelete"The very link says: "In fact, the U.S. census has never before directly asked for the citizenship status of every person living in every household.""
And then proceeds to relate questions that amount to the same thing,, which would be why I said "in some form".
The very first Census: "Heads of household were asked how many foreign-born people "not naturalized" were in their homes." Is this not asking citizenship status of every person in the household? And NPR states that it was asked of every household.
1830 they only inquired about the citizenship status of whites.
1870-1910 they were only interested in the citizenship status of adult men.
1920-1940, "naturalization status of foreign born people"
1950, people were asked if they were naturalized if they were foreign born.
"Later: "only a small sample of households were asked.""
This specifically refers to the 2010 Census, you'll notice.
The NPR report says, "For decades, the census asked only about the citizenship status of people born outside the U.S. who were later naturalized, or became U.S. citizens."
But their own graphic contradicts this; The Census asked of people born outside the US whether they had been naturalized. Thanks to birthright citizenship, you didn't have to ask that of people born here.
So, come on, let's not pretend this question is somehow unprecedented. It, or something similar, was the rule for censuses, not the exception.
Brett, you know what you are. Over the years at this and other blogs, you have revealed what you are.
ReplyDeleteYou have no evidence, but .... Pull guesses out or your derriere about lawyers blowing cases. I seem to recall years back your complaining about the legal profession ast various blogs, including your own attorney in your divorce proceedings. Attorneys and courts have been biases of yours since you entered the blogosphere, including letting all know about the pleasures of going international. Shall we talk about your complaints with the U of TX on its admissions policy as impacting potentially upon your mixed race son (Asian-American) when Asian American societies were in accord with U of TX admission policies?
Did Wilbur Ross have discussions with Trump about the Citizenship question before Ross' pretext? Was Trump aware that this was a pretext? Was it Trump's idea to have the Citizenship question? Discovery in normal course of litigation could have looked into the details. But then the SG succeeded in convincing SCOTUS to take the appeal without circuit review. Much has appeared on the Internet on this. Was there a fraud upon the Court? Plaintiffs are challenging a change in DOJ's legal team, calling for an explanation of why the change. Could it be that Trump's Roy Cohn, aka AG Barr, might blow up what integrity remains in the DOJ to soothe the narcissist racist Trump? Perhaps Barr expects SCOTUS will accommodate Trump, despite the pretext, the unclean hands, of the Trump administration.
Brett, a lot of people know what you are.
(◔_◔)
ReplyDeleteMr. W:
ReplyDeleteDon’t be coy. Democrat polticos and those with bylines are all noting the census is necessary for the distribution of federal funds and districting.
As for “persons,” the census has never counted visiting or invading foreign citizens. Illegal aliens very arguably fall under this exception. However, as I noted above, the citizenship question does not ask legal status so that issue is not yet ripe.
Is that an Emoji of Brett's photo that accompanies his comments?
ReplyDeleteTelling how the career bureaucrats and the Democrats are making the same exact unfounded claim.
ReplyDeleteYou mean Democrats and people who are actual experts on the census are making the same well-justified claim, to which claim the government offered no rebuttal.
I mean, I know Gorsuch talked about, "Gee, the experts could be wrong," and either the dissent or Roberts made the laughable statement that Ross made a reasoned decision, but get serious. There is no reasonable argument that including the question won't produce an undercount.
That's what you, and Brett, like the GOP more broadly, want, and you are both prepared to beclown yourselves by advancing patently ridiculous arguments.
So much for the law-as-written! The plain meaning of the Constituion is now a Democrat trap or something.
ReplyDeletelet's not pretend this question is somehow unprecedented. It, or something similar, was the rule for censuses, not the exception.
ReplyDeleteWhatever. This has zero relevance to the case.
Just because a mistake was made in 1950 is no reason to make it again in 2020. And the current problem with undercounts of illegal immigrants wouldn't have come up until recently. Until the 1920's at the earliest there was hardly such a thing as an illegal immigrant.
Joe, you're a nice contrast, you actually engage. You still tend to make that assumption of racism, but it doesn't comprise the whole of your argument.
ReplyDeleteThe lack of engagement is not out of the blue but I'll take the compliment.
But, I said "race," to be clear, not "racism." Race makes the whole thing more sensitive than various questions. Yes, "racism" is involved and it is more than an "assumption," but one that has been shown in detail during the lawsuit.
And then proceeds to relate questions that amount to the same thing,, which would be why I said "in some form".
The proposed question (cited): "is this person a citizen of the U.S." may be asked of each person in the household. We get a breakdown:
The very first Census: "Heads of household were asked how many foreign-born people "not naturalized" were in their homes."
That is the first cited (1820). Some foreign born people might have been citizens in 1820 without being naturalized. Also, Unknown spoke of "sent." I don't know if they did in mail census in 1820. Anyway, the question isn't the same as specifically asking about each person in the household. It merely provides a number for the designated group.
1830 they only inquired about the citizenship status of whites.
Yes. Not the same as asking about each person. And, the question is more than that. The chart says "foreigners not naturalized." It is unclear what that means. Is someone residing here ten years a "foreigner" merely because they weren't naturalized? But, anyway.
1870-1910 they were only interested in the citizenship status of adult men.
The question in 1870 is actually different than that. It actually asked a citizenship question of males. And, it probably was really tied to a form of the 14.2 type question since at that time they were particularly concerned about denying voting rights of that sort. And, it would be relevant to the degree women didn't vote (though certain places did allow women to vote even that early). Again, I'm not sure about the mail part, which to be fair, is part of Unknown's question -- he spoke of a specific form "sent."
Anyway, the questions were different from the proposed one.
1920-1940, "naturalization status of foreign born people"
1950, people were asked if they were naturalized if they were foreign born.
The 1940 question was phrased a bit differently. Either way, it was a citizenship question for each person. If foreign born, naturalization status was the issue.
"Later: "only a small sample of households were asked.""
This specifically refers to the 2010 Census, you'll notice.
In 1970, "1 of 20 households" are referenced regarding foreign born people, asking their naturalization status. Not "Is this person a citizen of the United States?" for each person. Again, not the same question. 5% seems to me is a "small sample."
The NPR report says, "For decades, the census asked only about the citizenship status of people born outside the U.S. who were later naturalized, or became U.S. citizens."
But their own graphic contradicts this; The Census asked of people born outside the US whether they had been naturalized. Thanks to birthright citizenship, you didn't have to ask that of people born here.
If it doesn't matter, it is curious that over our history the question was asked in various ways. For one thing, everyone is not aware of the nuances of citizenship law. Anyway, again, the people who actually craft these things thought the language not simply the same in all relevant ways. They carefully crafted things.
[cont]
ReplyDeleteSo, come on, let's not pretend this question is somehow unprecedented. It, or something similar, was the rule for censuses, not the exception.
A question "somehow" like it, at least to "some" people (in the last half century that qualifier more notable), was asked. The specific question for each person was not.
It also was not the policy for around sixty years to ask about the question broadly. A change violated long term policy and furthermore was found to suppress the count. Likewise, the fact we are more concerned about this in 2019 as compared to 1949 and earlier, is pretty simple to understand too.
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ReplyDeleteBD: Telling how the career bureaucrats and the Democrats are making the same exact unfounded claim.
ReplyDeletebyomtov: You mean Democrats and people who are actual experts on the census are making the same well-justified claim, to which claim the government offered no rebuttal.
Scientific socialism is based on the claim the bureaucracy's studies and decrees are based on "science" regardless of whether they conform to the scientific method or change over time to meet evolving political expediencies.
As I noted, these same bureaucrats claimed their prior enumerations asking the citizenship question were all accurate. Only when the question threatened Democrat money and power did their positions suddenly change.
"After 1950, sixty years ago, Congress specifically chose as careful legislative judgment, that is the law being applied, not to ask each person their citizenship status."
ReplyDeleteI wasn't aware that the change after 1950 was driven by a specific statutory command. Not disputing that, but I'd like to see the language.
BD: As for “persons,” the census has never counted visiting or invading foreign citizens. Illegal aliens very arguably fall under this exception. However, as I noted above, the citizenship question does not ask legal status so that issue is not yet ripe.
ReplyDeleteMr. W: So much for the law-as-written! The plain meaning of the Constituion is now a Democrat trap or something.
The textual argument is simple. "The people" are residents who submit themselves to US law and "persons" are individual members of "the people."
The People have never included visiting or invading foreign citizens nor have past censuses counted them as "persons."
On what basis, then, are we counting illegal aliens who by definition refuse to submit themselves to our law?
"Scientific socialism is based on the claim the bureaucracy's studies"
ReplyDeleteMore twaddle. One of the common characteristics of fascism is suspicion and attacking the educated, intellectual world...The people who work on the Census are educated and trained social scientists who could just as likely be (and often do) working for big companies, polling firms, think tanks.
But you don't have to have their expertise, anyone who has taken a basic research methods course and reads the news can realize the question threatens a more accurate count.
"these same bureaucrats claimed their prior enumerations asking the citizenship question were all accurate"
Given it hasn't been on the short form for decades those are some long lived bureaucrats!
"Only when the question threatened Democrat money and power did their positions suddenly change."
Here Bart gives the game away, conceding the question will promote an undercount.
""The people""
The text doesn't say count 'the people', it says count *persons* and undocumented migrants are certainly persons.
"never included visiting or invading foreign citizens "
And no one is asking those be counted. But what has always been counted are undocumented migrant non-citizens.
Let's also note that "The people" are residents who submit themselves to US law and "persons" are individual members of "the people." isn't a textual argument *at all.* It's a statement of political philosophy, perhaps, but it's not got one jot or tittle textualism to it.
ReplyDeleteA textualist argument looks at, well, the actual text! And the text clearly says persons, and elsewhere in the text it is clear that persons are something other than citizens (who would be 'the people').
Of course we shouldn't surprised here, Bart never meant to follow 'the law-as-written,' it was just a line he thought sounded cool.
SPAM introduces "scientific socialism" into the discussion as a deflection. Perhaps this indicates that SPAM is a neanderthal.
ReplyDeleteBy the Bybee [expletives deleted], illegal and undocumented aliens are subject to our law, as are citizens. Of course, some citizens (Bundy Bros) often refuse to submit themselves to our law, as do those revolutionary 2nd A absolutists.
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ReplyDeleteMr. W: Let's also note that "The people" are residents who submit themselves to US law and "persons" are individual members of "the people." isn't a textual argument *at all.* It's a statement of political philosophy, perhaps, but it's not got one jot or tittle textualism to it.
ReplyDeleteHere is your exam question:
Read in para materia usages of "the People" and "persons" in the Constitution. Do these usages logically apply to visiting or invading foreign citizens? Explain.
Erratum: The 1940 question was phrased a bit differently. Either way, it was NOT a citizenship question for each person. If foreign born, naturalization status was the issue.
ReplyDeleteAfter skimming the in depth lower court opinions, my 1950 Congress point was an ill advised unnecessary addition. So, I'll insert this new summary.
https://www.leagle.com/decision/infdco20180727e39
https://www.scotusblog.com/wp-content/uploads/2019/02/State-Of-New-York-et-al-v-United-States-Department-of-Commerce-et-al.pdf
To summarize: the question over the years changed in various ways as did the environment of the country as a whole. This is relevant only so much but the whole picture is important.
This would include the specific issue at hand. After 1950, nearly seventy years ago, the Census Bureau changed gears and determined it good policy not to ask the naturalization/citizen type question. First, it was deemed as unnecessary but in time it was also found by experts there in fact be actively problematic for an accurate count.
At the very least, changing this requires under the process in place a careful extended process that does not interfere with the census and/or has other equal protection problems. This was is stated in express law as shown in the opinions. The question was not so crafted. [e.g., The Secretary must submit a report to Congress at least two years prior to the census "containing the Secretary's determination of the questions proposed to be included." A lengthy formal process is also required per administrative agency rules.]
It was so bad that Brett even seems to agree with Roberts though wonders if the problem was that Trump was failed by his underlings.
General comment.
ReplyDeleteI try to carefully phrase my comments especially since these issues often have nuances. I think that is generally a good policy. I also find that I need to see something posted before fully getting a sense of things. This leads me at times to need to delete and replace.
It's an imperfect process. But, I also find it hard at times because accounts don't provide useful data. Like I had to repeatedly look for something with the exact question, not one paraphrased. The article linked is a summary too. The specific cases have nuances that are some relevance. OTOH, you can get lost in the weeds and make comments that are too broad.
As is usual in GM posts, a lot of this goes beyond his original comment. On that, as noted at National Review, the op-ed goes off the rails. I think I'll end there.
BD: Scientific socialism is based on the claim the bureaucracy's studies and decrees are based on "science" regardless of whether they conform to the scientific method or change over time to meet evolving political expediencies.
ReplyDeleteMr. W: More twaddle. One of the common characteristics of fascism is suspicion and attacking the educated, intellectual world...
On this subject, fascists and socialists are of the same mind - both employ an absolute bureaucracy, both claim the bureaucracy's studies and decrees are based on "science," and both persecute dissenters from the government "science." As do you.
"Erratum: The 1940 question was phrased a bit differently. Either way, it was NOT a citizenship question for each person. If foreign born, naturalization status was the issue."
ReplyDeleteYou've got me a bit puzzled by the distinction you're drawing here; "Naturalization" is the process of gaining citizenship, so citizenship status is exactly what naturalization status is about.
"After skimming the in depth lower court opinions, my 1950 Congress point was an ill advised unnecessary addition."
So, you're saying, the Census Bureau, which is to say, the Executive branch, made the decision, not Congress. OK, that sounds more like my understanding.
The issue here is not so much that the question would violate the Constitution, or even a statute, but rather the procedure followed in deciding to resume asking it. I'm perfectly willing to credit that, as a statutory matter, Trump just waited too long before suggesting the question be added.
Which, barring legislation, could be just as fatal to asking it as some fictional constitutional obstacle. So, why not lead with that?
On what basis, then, are we counting illegal aliens who by definition refuse to submit themselves to our law?
ReplyDeleteShort answer - the Constitution says we are supposed to.
Besides, we count convicts, "who by definition refuse to submit themselves to our law."
So if we count murderers and rapists why shouldn't we count those who committed a misdemeanor by entering the country, but in abide by our laws at least as faithfully as citizens on average? And yes, that applies to illegal immigrants as well.
Scientific socialism is based on the claim the bureaucracy's studies and decrees are based on "science" regardless of whether they conform to the scientific method or change over time to meet evolving political expediencies.
ReplyDeleteAs I noted, these same bureaucrats claimed their prior enumerations asking the citizenship question were all accurate. Only when the question threatened Democrat money and power did their positions suddenly change.
JFTR, this comment is complete nonsense. Are you really a lawyer? Do you get with this kind of idiocy in court?
there is still zero evidence a citizenship question will cause illegal aliens to participate in the census at lower levels than is already the case.
ReplyDeleteThere is tons of evidence. You have your eyes shut and your fingers in your ears, and are pretending you, or maybe Ross, know more about how to conduct a census than those who actually do understand it. What arrogant foolishness.
"visiting or invading foreign citizens"
ReplyDeleteUndocumented migrants are neither visiting or invading armies. They are though certainly persons under the text of the Constitution. Over 120 years of SCOTUS precedent is in accord. And the text of the Constitution plainly says all persons should be counted in the Census.
"both claim the bureaucracy's studies and decrees are based on "science," and both persecute dissenters from the government "science."
More twaddle. There isn't 'government science' and 'non-government' science, there is just science sometimes done by those in government employ and sometimes by those outside. In fact, the same people often do both. In this particular case the head science advisor that told Ross the question would lead to an undercount has a full time job with a major private firm (Nielsen Media Research).
BD: On what basis, then, are we counting illegal aliens who by definition refuse to submit themselves to our law?
ReplyDeletebyomtov: Short answer - the Constitution says we are supposed to.
Where?
We are discussing classes of foreign citizens who do not submit themselves to "the jurisdiction" of the United States as citizens or legal residents, such as diplomats, visitors and invading armies. The Constitution does not use the terms People or persons in a manner which would apply to these. The government has never considered these foreign citizens to be part of the constitutional people or persons. Our census has never counted these foreign citizens as constitutional persons.
Why then should the census count illegal aliens?
BD: [T]here is still zero evidence a citizenship question will cause illegal aliens to participate in the census at lower levels than is already the case.
byomtov: There is tons of evidence.
Feel free to offer it.
I don't think you can really justify excluding this question on the basis that it might reduce the response rate by illegal aliens. (And, despite the attempts to obscure this, it's illegal aliens, not legal resident aliens, who would have reason to be concerned about such a question.)
ReplyDeleteSetting aside that every question beyond, "How many people reside here?" suppresses response rates, and is surplus to the requirements of the census...
The government has no convenient way of correcting undercounts due to asking people intrusive questions such as their sex, race, how many bathrooms they have. It can estimate the discrepancy, but the Constitution mandates an actual enumeration, which is to say, a count.
It does, however, have a convenient way of correcting undercounts due to asking people whether they are citizens: It can estimate the degree of the undercount, and deport the number of illegal immigrants necessary to bring the population into agreement with the count.
So it really isn't an issue, so far as I can see, even assuming a significant undercount of illegal aliens.
Brett, do you know it it was personally "Trump who just waited too long before suggesting the question be added"? Did suggest this to Wilbur Ross? Did they discuss using a pretext to avoid potential race issues? Was DOJ aware of the pretext? Whether Trump was involved? Oh, if only discovery had not been limited. Under the statutory/regulatory procedures, the Census Bureau officials had to comply with certain requirements. Ross rejected advice and the pretext was the basis for such rejection it appears. Then litigation surfaced, eventually leading to SCOTUS taking a direct appeal from the trial court at the urging of the Trump appointed SG Is it possible that Trump, the smart genius he claims to be came up with the actual citizenship question that Ross approved? And of course there is the evidence that SCOTUS did not have formally before it about the political benefits to Trump for such citizenship question. Dead men don't talk but their hard drives tell a story.
ReplyDeleteBy the Bybee [expletives deleted], Brett doesn't really want to engage, as he's a troll. When taken to task, he insists upon being educated. After being educated he reverts to trolling. As I note earlier, Brett has a personal bias against attorneys and courts. Just like Brett's failures at pulling red radishes competitively, his trolling bears no fruit.
Like I said, only an idiot would not see that this would lead to an undercount.
ReplyDeleteFWIW-As the brief for the American Statistical Association pointed out they've done studies of versions of the ACS (the long form) and found that the response rates are lower when the citizenship question is included.
But of course, like I said, you don't need to do such a study, anyone who has taken an introductory research methods class should know this.
BD: Read in para materia usages of "the People" and "persons" in the Constitution. Do these usages logically apply to visiting or invading foreign citizens? Explain.
ReplyDeleteMr. W: Undocumented migrants are neither visiting or invading armies.
I will take this as a concession the Contitution does not use the terms "the People" and "persons" in a manner which would apply to visiting or invading foreign citizens.
Now, distinguish illegal aliens from visiting or invading foreign citizens.
They are though certainly persons under the text of the Constitution.
Why?
Over 120 years of SCOTUS precedent is in accord.
The Supremes have never addressed the question.
And the text of the Constitution plainly says all persons should be counted in the Census.
You have conceded constitutional "persons" do include visiting or invading foreign citizens, so the term obviously does not apply to all human beings.
Stop dodging the question. How do you distinguish visiting or invading foreign citizen and illegal aliens?
"asking people intrusive questions such as their sex, race, how many bathrooms they have"
ReplyDeleteThe studies I mentioned also found that the citizenship question led to a statistically significant lower response rate compared to questions such as sex, race, etc.
"It can estimate the degree of the undercount, and deport the number of illegal immigrants necessary to bring the population into agreement with the count."
This is one Brett's more crack-potty comments (and that's saying something!). It also seems to display an interesting if goofy understanding of the way the Census works and what it's supposed to do. The government isn't supposed to make the population match the count, it counts the population 'warts and all.' This is because, while perhaps it might be ideal to have 0 undocumented migrants, if they are here they are 1. persons and we're obligated by the text of the Constitution to count them and 2. if they are here they are using things like roads and such at the very least, subject to our jurisdiction and our apportionment (in ways more than political) needs to take that into account.
The Census and the problem of undocumented migrants are, and should be, two different things. It should not be hard to want to get the most accurate count of all persons as charged by the Constitution but for aggressive measures to fight undocumented migration. The problem is that conservatives have decided to warp the first as a tool in the fight against the second. Just one more indicator of what partisanship does to people's brains and/or integrity.
"illegal aliens from visiting or invading foreign citizens"
ReplyDeleteThey are not visiting, they are living and working here. And they are not an invading army.
"Why?"
Because they are persons. They're not plants or rocks. You have eyes and understand what a person is, right?
"The Supremes have never addressed the question."
They determined that migrants here illegally are persons to be accorded due process in line with the 14th Amendment over 120 years ago. That holding has been repeated many times.
"You have conceded constitutional "persons" do include visiting or invading foreign citizens"
I have conceded no such thing. I have pointed out that the law as written, which you invoke, is clear here, it says all *persons* shall be counted, and the text is equally clear that persons is something other than citizens.
Mr. W: As the brief for the American Statistical Association pointed out they've done studies of versions of the ACS (the long form) and found that the response rates are lower when the citizenship question is included.
ReplyDeleteHave you actually read your cited amicus brief?
There is no study.
Here is the pretzel logic offered:
(1) A citizenship question will reduce the response rate of the census by increasing the "respondent burden."
(2) In any case, the American Community Survey poll already asks this question and many others.
(3) However, the American Community Survey poll asking the citizenship question is not a problem because it is buried among other questions.
What?I?
If the problem is respondent burden, then the ACS poll presents not only the burden of the citizenship question, but also that of dozens of other questions.
As Mark Twain famously observed: "There are three kinds of lies: lies, damned lies, and statistics."
Here is the definition of person from Webster's 1828 dictionary:
ReplyDeleteAn individual human being consisting of body and soul. We apply the word to living beings only, possessed of a rational nature...A man, woman or child, considered as opposed to things, or distinct from them
http://webstersdictionary1828.com/Dictionary/person
I don't think even the most anti-migrant could argue that they are not individual human beings as opposed to things....
Also, from Plyler v. Doe: "Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)."
"As the Bureau’s Chief Scientist has noted,
ReplyDelete“item nonresponse rates for the citizenship question
[asked as part of the ACS] are much greater than the
comparable rates for other demographic variables
like sex, birthdate/age, and race/ethnicity.”
And I love the kicker: "The reason is obvious: questions about citizenship status are overwhelmingly sensitive."
Well, obvious to most ;)
BD: How do you distinguish visiting or invading foreign citizen and illegal aliens?
ReplyDeleteMr. W: They are not visiting, they are living and working here. And they are not an invading army.
In what way is the mass migration of illegal aliens into our territory not akin to an invading army?
Ask the Indian tribes how they considered Europeans and European-Americans migrating into their territory.
Mr. W: Because they are persons. They're not plants or rocks. You have eyes and understand what a person is, right?
So are the other classes of foreign citizens we do not consider to per constitutional persons and have never counted in our census.
BD: The Supremes have never addressed the question.
They determined that migrants here illegally are persons to be accorded due process in line with the 14th Amendment over 120 years ago. That holding has been repeated many times.
Red herring. The question is whether illegal aliens are persons for the purpose of our enumeration.
BD: You have conceded constitutional "persons" do include visiting or invading foreign citizens.
Mr. W: I have conceded no such thing. I have pointed out that the law as written, which you invoke, is clear here, it says all *persons* shall be counted, and the text is equally clear that persons is something other than citizens.
Are you actually claiming persons under the constitution and the census should include visiting or invading foreign citizens?
Really?
I also am happy that Bart characteristically reveals his ignorance of what he's talking about and tops it off with some of his usual sloppy logic.
ReplyDeleteThe ACS is asked yearly and to only a fraction of people. Traditional survey 'weighting' and sampling techniques are used in conducting it which take into (and for granted!) account lowered response rates due to the more (and more sensitive questions). The ACS' goal is information not an enumeration.
Mf. W: And I love the kicker: "The reason is obvious: questions about citizenship status are overwhelmingly sensitive."
ReplyDeleteThis is the "everyone knows X is true" logical fallacy at its worst.
This is the crap you call "science?"
"In what way is the mass migration of illegal aliens into our territory not akin to an invading army? "
ReplyDeleteIt's of course nothing like it, in coordination, motivation, direction, or any way.
"have never counted in our census."
Unfortunately for you we've always counted undocumented migrants.
"Red herring. The question is whether illegal aliens are persons for the purpose of our enumeration."
Lol, so when the 14th uses 'persons' in section 1 it means something totally different than when it uses the same term in section 2? Ladies and gentlemen, this is someone who actually professes to be a textualist!
"Are you actually claiming persons under the constitution and the census should include visiting or invading foreign citizens?"
I am pointing out that you are not engaging in the law-as-written.
Mr. W: The ACS' goal is information not an enumeration.
ReplyDeleteSo, now you are arguing that the undercount which "everyone knows" will occur is no big deal so long as you are only collecting "information."
Really?
Science does assume some common sense. Survey researchers know that certain kind of questions affect response rates. Only a moron would not see why this is so, but even for those morons there are numerous studies of this effect, and it's been found to be more impactful for survey items (questions) that involve controversial things. So now you'd have to be the kind of moron who would say that *whether you are a citizen or not is not the kind of question in today's climate that a non-citizen would find controversial.*
ReplyDeleteI design and give surveys for living (and get paid quite handsomely for it I might add). This isn't a conservative liberal thing, it's a 'know what you're talking about or not' thing and you're squarely in the latter.
BD: "In what way is the mass migration of illegal aliens into our territory not akin to an invading army? "
ReplyDeleteMr. W: It's of course nothing like it, in coordination, motivation, direction, or any way.
You mean apart from masses of foreign citizens illegally entering and occupying our territory?
BD: Are you actually claiming persons under the constitution and the census should include visiting or invading foreign citizens?"
Mr. W: I am pointing out that you are not engaging in the law-as-written.
Then you are actually claiming persons under the constitution and the census should include visiting or invading foreign citizens.
BD: Red herring. The question is whether illegal aliens are persons for the purpose of our enumeration.
Lol, so when the 14th uses 'persons' in section 1 it means something totally different than when it uses the same term in section 2?
The text had nothing to do with the Supremes' inconsistent extension of due process rights to all foreign citizens brought into our legal system, but no other rights and no requirement they be included in the census.
Bart, you just don't know what you're talking about at all here, and it's glaring to someone who does.
ReplyDeleteTake a simple political poll. The aim of a poll is to assess, via a sample, what a population says they will do (voting). No one conducting the poll thinks everyone is going to answer it, in fact given it's a political poll everyone in the field actually knows a lot, probably most will not. But they can still get a very accurate estimate of the population because they take into account the response rate in a variety of ways (for one quota sampling using an actual enumeration-like, you guessed it, the short form Census!-they can also do things *after* the poll such as weighting to make the answers more representative).
The ACS is like that. It's a very different bird than the short form Census. You literally don't know what you're talking about, so why don't you stop?
ReplyDeleteMr. W: The ACS' goal is information not an enumeration.
BD: So, now you are arguing that the undercount which "everyone knows" will occur is no big deal so long as you are only collecting "information." Really?
Mr. W: I design and give surveys for living (and get paid quite handsomely for it I might add).
Words fail.
"This is one Brett's more crack-potty comments (and that's saying something!). It also seems to display an interesting if goofy understanding of the way the Census works and what it's supposed to do. The government isn't supposed to make the population match the count, it counts the population 'warts and all.' This is because, while perhaps it might be ideal to have 0 undocumented migrants, if they are here they are 1. persons and we're obligated by the text of the Constitution to count them and 2. if they are here they are using things like roads and such at the very least, subject to our jurisdiction and our apportionment (in ways more than political) needs to take that into account."
ReplyDeleteIt's pretty straightforward: The (Constitutional!) purpose of the Census is population numbers for apportionment. The goal is a count that's accurate at the time of apportionment.
If you undercount citizens, or legal resident aliens, there isn't really anything you can do to "adjust the actual population", because those people have a RIGHT to be here. You can't adjust THEIR numbers.
Illegal aliens, on the other hand, have no right to be here. None whatsover. Their very presence here is an ongoing crime. Their ideal number, zero.
So, you count the people, ask the question, and 5 million illegal immigrants fail to respond to the Census because the question is there? Fine, deport 5 million illegal immigrants, and you have an accurate population number.
Heck, you can deport enough of them to make up for the undercount due to the bathroom question, too.
"You mean apart from masses of foreign citizens illegally entering and occupying our territory?"
ReplyDeleteYou're just equivocating. Migrants aren't illegally entering the way an invading army does (belligerently) nor are they occupying our territory in a military way. They're not even 'masses' in the sense of a coordinated group (or even a big group, they're no more of a 'mass' than people leaving a movie theater at the same time are).
Words mean things no matter what kind of postmodern jiggery-pokery you'd like to spin.
"Then you are actually claiming persons under the constitution and the census should include visiting or invading foreign citizens."
I'm claiming you're not relying on the law-as-written. It's fun to point out your inconsistency.
"The text had nothing to do with the Supremes' inconsistent extension..."
LOL, you really stepped in it, didn't you? I mean, did you actually not know that the very Amendment which uses persons in the DP clause that the Court has held includes migrants also uses it in reference to apportionment? Wow, forget talking about what you don't know about, you don't seem to know about what you're supposed to (ostensibly trained and work in)!
"So, you count the people, ask the question, and 5 million illegal immigrants fail to respond to the Census because the question is there? Fine, deport 5 million illegal immigrants, and you have an accurate population number."
ReplyDeleteNo, it's still goofy. You will have a constitutionally innaccurate count by 5 million and you're no closer to deporting anybody than you were before. The only thing the question does in your example is undermine the only think you agree the census it's a part of is supposed to do!
"Words fail."
ReplyDeleteSo you didn't even get the poll example huh? You really are lost.
Of course there are things one can do if there's an undercount:
ReplyDelete1. Statistical sampling (e.g., the ACS).
2. Eliminate questions likely to cause an undercount.
3. Devote more resources to the count.
I think this update is generally relevant to the OP. Judge Furman denied the DOJ's motion to change out counsel. He did allow 2 changes for attorneys who are leaving the DOJ.
ReplyDeleteBD: "You mean apart from masses of foreign citizens illegally entering and occupying our territory?"
ReplyDeleteMr. W: Migrants aren't illegally entering the way an invading army does (belligerently) nor are they occupying our territory in a military way.
There is no need to act in a military manner. The Europeans and European-American civilians who invaded the Indian territories were just seeking a better life for themselves.
Mr. W: They're not even 'masses' in the sense of a coordinated group (or even a big group, they're no more of a 'mass' than people leaving a movie theater at the same time are).
Do you watch the frigging news?
The scope of this invasion is massive, ranging up to several hundred a day, often coming in battalion size convoys. This migration dwarfs our invasion of the Indian territories during the 18th and 19th centuries.
The organization of this invasion rivals the command and control of any military operation, complete with logistics and transportation over several hundred miles culminating with the evasion of our border defenses.
Frankly, Trump should call this the invasion it is and deploy the military under his CiC powers to protect the borders, not to enforce the civil immigration law in violation of posse comitatus.
In his mind Trump may feel that with AG Barr he has found "mu Roy Cohn." But not publicly. But Trump might refer to Barr as "my General."
ReplyDeleteSPAM's recommendation to Trump regarding the "invasion" at the border brings to mind Trump's recent hop scotching Korea's DMZ with "my mini me" Trump felt very presidential. But in case things don't turn out well with his loving bro, I don't think we can expect bone spurs as C-I-C in the DMZ. There are some questions about the role of the military in amnesty situations. SPAM sounds like he's ready to re-up as an Intel officer.
By the Bybee [expletives deleted], Tom Friedman has an interesting NYTimes column today on who's a bigger threat to democracy, Bibi or Trump. Most of the column focuses on Bibi's threats to Israel's democracy in some detail. But closes with a short paragraph that compares that to what's happening in America but doesn't mention Trump by name.
Frankly, Trump should call this the invasion it is and deploy the military under his CiC powers to protect the borders, not to enforce the civil immigration law in violation of posse comitatus.
ReplyDelete# posted by Blogger Bart DePalma : 6:32 PM
Fortunately people with a darker skin color seem to see right through this racism. Each day there are more and more of them becoming eligible to vote. And they despise Rethuglicans. Tough times ahead for the Party of Robert Lee and Jefferson Davis.
BB: Fortunately people with a darker skin color seem to see right through this racism.
ReplyDeleteWas I also being "racist" by noting the European invasion of Indian territory?
Or is that one of the double standards of fascist identity politics?
And they despise Rethuglicans. Tough times ahead for the Party of Robert Lee and Jefferson Davis.
You misspelled Democrats. You know, the party of slavery, nullification, secession, Jim Crow and all current government racial discrimination.
A recent report states that the June 2019 border "arrests" were down 28%. Let's save the military for our own invasions, whether in the Muddle East or the DMZ now that the bone spurs have healed.
ReplyDeleteYou misspelled Democrats. You know, the party of slavery, nullification, secession, Jim Crow and all current government racial discrimination.
ReplyDelete# posted by Blogger Bart DePalma : 10:18 PM
And yet, for some unknown reason, the KKK and Nazis love you, and the people with dark skin can't fucking stand you. It's really odd.
Scientific socialism is based on the claim the bureaucracy's studies and decrees are based on "science" regardless of whether they conform to the scientific method or change over time to meet evolving political expediencies.
ReplyDeleteRight, Bart. We're supposed to ignore what actually professionals have to say about this and rely on your ignorant opinions instead. Because "socialism" or something.
"Twaddle" is too generous a description.
This comment has been removed by the author.
ReplyDeleteand all current government racial discrimination.
ReplyDelete# posted by Blogger Bart DePalma : 10:18 PM
Trying to remove monuments to Confederate traitors isn't discrimination, you racist piece of shit.
SPAM ignores that Trump is the leader of the current Republican Party that SPAM is in obscene lockstep with. SPAM has swallowed Trump as such, sexual predator that Trump is., racist that Trump is. The Republican Party has long ceased to be the party of Lincoln. Let me repeat the one redeeming aspect of SPAM: SPAM will not be passing on his vile genes.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteIt's sheer post-modern applesause when you call unarmed, non-belligerent, non-coordinated (Bart equivocates with that some groups coordinate within themselves for a trip [then later disperse] with migrants organizing across their 'masses' generally which is what armies do), non-occupying (migrants don't take control of and run the land they live in) and, most of all, not motivated by any military means'an army'. There are literally none of the characteristics of what common sense and, most importantly, national and international law (now and at the time of the Founding and in between) would be associated with 'an invading army.' Apples and oranges *literally* have more in common.
ReplyDeletePost-modern applesauce.
'Armies' without arms (the very root of the word!), without orders, without commanders, uniforms, coordination, ranks, common mission, and on and on and on. It's a laughable (though pernicious) tortured metaphor at best.
ReplyDeleteافضل شركة تنظيف بالرياض
ReplyDeleteشركة تنظيف مسابح بالرياض
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BD: Scientific socialism is based on the claim the bureaucracy's studies and decrees are based on "science" regardless of whether they conform to the scientific method or change over time to meet evolving political expediencies.
ReplyDeletebyomtov: Right, Bart. We're supposed to ignore what actually professionals have to say about this and rely on your ignorant opinions instead.
Stop worshiping credentials and engage in critical thinking, most especially when dealing with governments.
Consider that this advice from SPAM " ... and engage in critical thinking, most especially when dealing with governments." is a reminder that in the past SPAM has expressed his view that the 2nd A supports revolution against government. Of course when SPAM has been reminded of his oaths as an attorney regarding the Constitution, he backtracks somewhat, a reminder that he has from time to time self-described as an anarcho-libertarian.
ReplyDeleteStop worshiping credentials and engage in critical thinking, most especially when dealing with governments.
ReplyDeleteIt is not worshipping credentials to respect professional expertise. And it takes only a smidgen of critical thinking, something you seem incapable of, to recognize that the question will cause a serious undercount.
To imagine, as you do, that your "critical thinking" skills can surmount your complete ignorance of the subject is egotism carried to the point of mental illness. Your own comments reveal that your thinking on this matter is ludicrous. I realize that many lawyers suffer from less severe cases of this particular disease, but yours is truly one for the books.
BD: "You mean apart from masses of foreign citizens illegally entering and occupying our territory?"
ReplyDeleteMr. W: Migrants aren't illegally entering the way an invading army does (belligerently) nor are they occupying our territory in a military way.
BD: There is no need to act in a military manner. The Europeans and European-American civilians who invaded the Indian territories were just seeking a better life for themselves.
Mr. W:It's sheer post-modern applesause when you call unarmed, non-belligerent, non-coordinated (Bart equivocates with that some groups coordinate within themselves for a trip [then later disperse] with migrants organizing across their 'masses' generally which is what armies do), non-occupying (migrants don't take control of and run the land they live in) and, most of all, not motivated by any military means'an army'.
When you find yourself trapped in an argument, you invariably deploy straw men. You are the only one using terms like "military" and "army."
Migrants do not take control over the land the live in?
Seriously, did they teach history in then schools and universities you attended?
History is one long saga of human migrations displacing the previous natives. The US is a prime example of this history. Our nation was established from such a mass displacement. The character of most of our major cities changed over history with each new wave of migrants who occupied the territory. The same is true today.
I addressed the rest of your straw men in previous posts.
Stop worshiping credentials and engage in critical thinking, most especially when dealing with governments.
ReplyDelete# posted by Blogger Bart DePalma : 8:36 AM
Blankshot, your next critical thought will be your first.
BD: Stop worshiping credentials and engage in critical thinking, most especially when dealing with governments.
ReplyDeletebyomtov: It is not worshipping credentials to respect professional expertise. And it takes only a smidgen of critical thinking, something you seem incapable of, to recognize that the question will cause a serious undercount.
A very small smidgen of critical thinking given you are enging in the "everyone knows X to be true" logical fallacy.
Critical thinking demands evidence.
Migrants do not take control over the land the live in?
ReplyDelete# posted by Blogger Bart DePalma : 9:30 AM
They’re coming to harvest crops and clean bathrooms for very low wages. That’s much closer to slavery than taking control. This was a pretty sad first attempt at critical thinking for you. Try harder.
If, as SPAM claims, "Critical thinking requires evidence", SPAM rarely provides evidence, just pulling crapola out of his derriere. Let's flag SPAM's claim and call upon SPAM to provide evidence, real evidence.
ReplyDeleteThe military sense of ermy is the predominate sense in use nd the one relevant to not being counted by the Census. You're dishonestly or obtusely equivocating.
ReplyDeleteThe past migrants and settlers were also not invading armies. Your argument seems to be that any migration that changes the places migrated to makes the migrants an 'invading army.' That's silly. I e listed the main characteristics of the common and legal understanding of the term invading army and they're all absent. Besides, according to your idiosyncratic criteria invited, legal migrants would be an invading army.
Your just desperately resorting to making up words and meanings because you don't like the results of the plain meaning of the law-as-written. Heck you don't even have penumbras to hide your atextual postmodernist legal ideas.
Shag:
ReplyDeleteNow we shift to the proving the negative fallacy.
You Democrats claim reposing the oft asked citizenship question on the census will reduce illegal alien participation.
You bear the burden of offering evidence to prove your proposition.
I bear no burden to disprove your proposition.
It is it credential worship to recognize many topics are complex and nuanced and that people who have years more education, training and experience in them are more likely to understand them than a layperson. In fact it's common sense and inductively sound.
ReplyDeleteYou bear the burden of offering evidence to prove your proposition.
ReplyDeleteThe Census own experts admitted the question produced larger non responses than others, this has been noted and documented. Additionally, the consensus of expert opinion to the same has. On the other hand is simply you, a person who has demonstrated a motivation bias and has no training or knowledge of the subject and a demonstrated history of comically blundering wrong conclusions in areas your not trained in.
Sorry, but the ball is not only in your court to disprove the likely inaccurate count due to the questions inclusion, it's basically a boulder buried a mike under your court.
Mr. W:The past migrants and settlers were also not invading armies.
ReplyDeleteYou are consistent in your straw men, I will grant you that.
Ask the Indians whether the European and European-American migrants were invaders.
“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Ralph Waldo Emerson.
Mr. W: Besides, according to your idiosyncratic criteria invited, legal migrants would be an invading army.
An invitee cannot be an invader.
Blankshot, there are plenty of studies showing that the question would cause problems.
ReplyDeletehttps://www.washingtonpost.com/politics/2019/04/22/new-research-shows-just-how-badly-citizenship-question-would-hurt-census/?utm_term=.e690c8f3b3ed
BD: You bear the burden of offering evidence to prove your proposition.
ReplyDeleteMr, W: The Census own experts admitted the question produced larger non responses than others
This is getting old.
Opinion without foundation is NOT evidence.
Is this the kind of crap you produce at work?