Photo by Katie Moum on Unsplash

Census counting and whole persons

When it comes to the census the Constitution calls for counting each person living in a given area. It makes no mention, aside from “Indians not taxed” whether the census should consider citizens and legal aliens only, or all persons residing in an area, legally or not.

Considering the Supreme Court will have a 6–3 conservative majority when the census case reaches them this should be an easy loss for the Trump team (even with a 6–3 liberal majority it would be an easy loss for the Trump admin). Any “originalist” and “textualist” will have a hard time creating the logic to give the Trump Admin a win on this. The text is clear, and I don’t believe the authors of this particular Amendment gave any thought to legal vs. illegal residents. After all, the country was still undergoing rapid Westward expansion, and I would think that the powers that be at the time would have welcomed nearly anyone, as long as they weren’t Native of African, as a person to be counted. Besides, there’s a clear distinction in the Constitution between those who are to be counted in the census and those who have the right to vote.

While I worry that the Supreme Court will decide in favor of the Trump Admin, doing so would require some serious logical and legal gymnastics that I can’t see standing up against a simple Act of Congress (possibly even an act that would be retroactive for this census). Of course, that would require that both houses of Congress and the White House are controlled by the Democrats for such an Act to pass.

Also, remember, the Constitution plainly calls out “Indians not taxed”, and as we’ve learned, many illegal immigrants (in the 50% — 75% range) pay taxes, federal, state and local. Again, I fear that the conservative majority of the Supreme Court will find a way, no matter how tortured the logic and legal foundation, to side with Trump. If they do, at the very least it will be interesting to see how they try splitting this baby.

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