A Supreme Court Decision May Cause Democrats' Sanctuary Policies to Backfire

AP Photo/Patrick Semansky

Democrat-run states and cities have declared themselves sanctuaries for illegal immigrants and implemented various policies to thwart ICE law-enforcement activities. This includes everything from refusing to honor ICE detainers to the Mayor of Oakland, Calif., issuing a public warning about planned enforcement actions by ICE. Leaders were hopeful these policies would prop up their census counts and assist states in maintaining their seats in the House of Representatives. They went to the Supreme Court to ensure they could.


On December 18, the Supreme Court blew this strategy right out of the water. SCOTUS vacated two lower court decisions preventing the exclusion of illegal immigrants from congressional apportionment. They cited the speculative nature of the claims being made by the jurisdictions opposing the president’s directive.

The memorandum from President Trump to the secretary of Commerce requires two counts—the full census numbers and a second number that excludes illegal immigrants. Because Chief Justice John Roberts did some outrageous judicial gymnastics in an earlier case regarding a citizenship question on the census, the second count will rely on other agencies’ administrative records. That information was collected under an Executive Order issued following the decision on the census question.

The president’s reasoning for requesting that illegal immigrants be excluded from apportionment is clear:

Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.  States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.

In the memorandum, the president noted that a single state (which he did not identify) is estimated to be the home to more than 2.2 million illegal immigrants. Current congressional districts in that state each have about 700,000 residents, so the illegal population would apportion approximately three additional seats. The president points out that this is not consistent with the principles of representative democracy. Providing political influence based on the presence of non-citizens reduces the representation of citizens and legal residents.


The plaintiffs alleged that the exclusion of illegal immigrants from the apportionment would impact federal funding. SCOTUS did not find that this conclusion could be made and determined there was no actual controversy and said it was not a dispute that could be resolved through the judicial process.

California attorney general, and candidate for HHS Secretary under Joe Biden, Xavier Becerra, is unhappy with the ruling. California is a sanctuary state—and likely the state singled out by President Trump in the memorandum. While there has been speculation that California would lose one seat due to unprecedented outmigration from the state’s failed urban centers, it now has the potential to lose three.

In a statement, Becerra said:

A complete, accurate census is about ensuring all our voices are heard and that our states get their share of resources to protect the health and well-being of all of our communities. We remain committed to the core principle that everyone counts. Here in California, we’ll continue to stand up for each and every person who calls our state home.

The memorandum explicitly states that it does not apply to functions of the director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. It is narrowly construed to address only the apportionment of seats in the House of Representatives. It would appear Becerra’s premise is moot.

However, it would be nice to insert a bit of federalism here. California voters elect the leaders that implement the policies to encourage illegal immigrants to reside in the state. One could assert that voters in other states that do not have sanctuary policies are under no obligation to provide resources for the decisions of California voters. Sometimes paying for bad decisions helps people make better ones.

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