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House Democrats Ask SCOTUS to Reject Trump’s ‘Unlawful and Unprecedented’ Bid to Exclude Undocumented Immigrants from Census Apportionment

Donaald Trump Voting with Melania

House Democrats on Monday filed an amicus brief asking the U.S. Supreme Court to reject the Trump administration’s “unlawful and unprecedented efforts” to exclude undocumented immigrants from the U.S. census apportionment count used to allocate congressional representation and congressional funds.

The brief was filed by members of Congress in the State of New York’s lawsuit challenging the constitutionality of President Donald Trump’s July 21 memo declaring that it was “the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status” and directed Commerce Secretary Wilbur Ross to “take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out th[is] policy.”

Under Section II of the Fourteenth Amendment of the U.S. Constitution, the federal government is required to reapportion congressional seats by “counting the whole number of persons in each state” every 10 years in the form of the U.S. Census. That data is also used in the distribution of trillions of federal dollars and in the redrawing of state and local voting districts.

Attorneys for the administration have defended the president’s directive, claiming that the Constitution’s aforementioned reference to “persons” is limited to a state’s “inhabitants,” arguing that the term is sufficiently “indeterminate” that it allows Trump to construe it a completely novel manner that excludes the undocumented.

But attorneys representing the House argued that such an interpretation contravenes the U.S. Constitution, the legislative history of the Fourteenth Amendment, and established Supreme Court precedent.

“The meaning of this provision is clear. The term ‘person’ includes any ‘human being,’ without regard to legal status. That the Fourteenth Amendment elsewhere uses the word ‘citizens’ when referring to certain individual rights underscores that the broader reference to ‘persons’ for purposes of the apportionment count is not tied to citizenship status,” attorneys representing the House argued. “In addition, when interpreting the Fourteenth Amendment’s Due Process Clause, this Court has consistently held that ‘[a]liens, even aliens whose presence in this country is unlawful,’ are encompassed within the broad term ‘persons.’”

The memorandum also noted that the current Census Bureau Director Steven Dillingham testified earlier this year before Congress that they should “count everyone, wherever they are living.”

“And in a subsequent hearing before a House committee, four former Census Bureau Directors testified that the Administration’s effort to exclude undocumented immigrants from the apportionment count was unconstitutional,” the memo added.

A rare three-judge district court—which included two appointees of President George W. Bush—unanimously ruled in September that Trump’s memo was unconstitutional. The administration was able to appeal the decision directly to the Supreme Court, however, because of a special provision for cases challenging the constitutionality of the apportionment of congressional districts.

Read the full filing below:

House Amicus Census by Law&Crime on Scribd

[Image via MANDEL NGAN/AFP via Getty Images.]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.