Trump v. New York

Let's look ahead to the argument in Trump v. New York, which is scheduled for November 30th. Trump challenges the President's request to the Secretary of Commerce for two tabulations of each state's population for the next congressional reapportionment. One figure is the total population of each state (excluding Indians not taxed) as defined by Section Two of the Fourteenth Amendment. The other is the same figure reduced by the estimated number of people who are here illegally. The President is required by law to report a population figure to Congress prior to January 20th, and he could choose to use either figure if the challenge in Trump is rejected.

There is a strong argument that the plaintiffs in Trump lack standing. But if the Court chooses to reach the merits, there are several problems with the Government's position that I want to discuss briefly.

1. There is no count of people here illegally. There is only a guess. The census did not, of course, ask people about citizenship because the Government lost that case in the Supreme Court. Nor did the census ask about other aspects of legal status. Whatever discretion the President has in determining each state's population should extend only to actual counts. Making those determinations based on guesses is the very definition of arbitrary, especially given the constitutional language about enumeration in the census.

2. Assuming that the President's discretion in determining population figures does includes guesses, the Government provides no limiting principle for that discretion. The arguments advanced in the Acting Solicitor General's brief could easily justify the exclusion of lawful permanent residents, for example.

3. The principal case upon which the Government relies, Franklin v. Massachusetts, cuts against their position. Franklin held that the President's discretion in determining state population totals could be exercised to be more inclusive by counting military personnel overseas as living in their home states. The Court emphasized the "broad connotations" of counting people for the population figures. None of this is consistent with the President's exercise of discretion to exclude a broad swath of people from the counts for the first time.

4. There is no textual support for the Government's position. And there is nothing in the original public meaning to support their arguments. Meanwhile, there is a longstanding practice of counting people here illegally in the population figures for reapportionment. 

I look forward to seeing briefing from the challengers, as they have not yet submitted their materials.