Donald Trump signed an executive order on Tuesday that would exclude illegal aliens from being counted by the census for purposes of apportioning congressional districts.
As the president knew it would, liberal heads began exploding all over the country.
The memo, according to a White House aide, “is another decisive step toward fulfilling his solemn pledge to ensure only American citizens have congressional representation, not illegal aliens.” There’s no reason that California should have 2 or 3 additional representatives in Congress just because they have lax immigration enforcement. It disadvantages those states that try to enforce the law. Counting illegal aliens for purposes of creating congressional districts is patently unfair.
The problem is that there is no citizenship question on the census so there’s no way to determine if someone is legal or illegal — and the Supreme Court has already ruled that a citizenship question on the census form is unconstitutional. In 2016, the Court ruled that apportioning legislative districts by total population rather than eligibility to vote is required by the 14th Amendment.
Trump’s order excludes “illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law.” The “extent feasible” is close to zero and even though the “president’s discretion” is broad, it’s not infinite.
For all practical purposes, this is a political document. A well-meaning one, but a political document nonetheless. The issue should be addressed by Congress, not the executive branch anyway.
Nevertheless, the administration took a stab at justifying its position on constitutional grounds.
“Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census,” the memo reads.
“Instead, the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included. Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are “persons” who have been excluded from the apportionment base in past censuses,” the document continues.
The president also claims broad authority to determine who qualifies as “an inhabitant” of a state.
“The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status,” the memo reads.
Liberals are lining up to take the executive order to court. It should be a legal slam-dunk for them given past Supreme Court decisions, but Trump’s purpose is not to win. His purpose is to show his base of support that he hasn’t forgotten them.
Is that a wise use of the president’s pen? It’s perfectly legal, so why not? This notion that no president has ever used his discretionary powers for political purposes is absurd. Trump may be doing it to an extent not seen before but in an age of gridlock in Congress, some things become necessary that in ordinary, sedate times might not be.
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