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The Supreme Court Has to Choose Between Trump and the Nation’s Founders

Are the court’s conservatives the devout originalists they claim to be or partisan hacks? A key immigration case will provide the proof.

OLIVIER DOULIERY/AFP/Getty Images

When is an immigrant not a person? According to President Donald Trump, it’s whenever the executive branch says so. The president has spent the past four years promulgating this idea for the purposes of excluding undocumented immigrants from the numbers used to calculate each state’s representation in Congress. Even though he is on his way out of office, this notion may become enshrined into law by the Supreme Court, which will hear oral arguments on a key case, Trump v. New York, on Monday. How the Roberts court rules could substantially tilt the balance of power in the legislature and ensure that some measure of Trumpism endures long into the Biden administration.

The Constitution requires the president to count the “whole number of persons in each State” through the decennial census. Congress then uses that number to apportion each state’s seats in the House of Representatives and, by extension, its votes in the Electoral College. The Constitution’s framers considered but rejected counting “citizens” or “voters,” fearing those terms could be manipulated by state or federal governments for political advantage. Instead, they chose “persons”—a word that would seem to have no wriggle room.

Nonetheless, the Trump administration will try to get the Supreme Court to agree that undocumented immigrants are not “persons” who must be included in the count. Should the president succeed, he will alter the very basis of our representational democracy—a system that has fully counted all of the people living in the United States since the abolition of slavery put an end to treating slaves as three-fifths of a person.

From a moral standpoint, the claims to personhood among undocumented immigrants is plain: To say otherwise is to deny their very humanity. But if the court’s conservative majority truly believes in originalism, it should find ample reason to rule against the president, for the same practical reasons that motivated the Constitution’s framers to choose that term: to prevent manipulation of apportionment for the benefit of the party in power. If undocumented immigrants can be excluded, then future presidents have a strong incentive to wield the executive’s extraordinary power over immigration status for partisan political gain, defining for the nation who is a “person” to be counted and who is not.

The Trump administration would have us believe that immigration status is static and binary: that noncitizens are either permanently legal immigrants or alternatively “illegal aliens,” and the government has no role to play in that determination. But most undocumented immigrants shift in and out of legal status, often at the discretion of executive branch officials. For proof, look to the four years of the Trump administration, which serve as Exhibit 1.

The Migration Policy Institute, a nonpartisan think tank, has cataloged more than 400 Trump administration policies that have barred undocumented immigrants from previously existing paths to legal standing and stripped hundreds of thousands of legal immigrants of their status. For example, the Trump administration ended an Obama-era policy granting asylum to victims of domestic violence; forced asylum-seekers to remain in Mexico while they await a decision in their cases; created new obstacles to relief from removal, such as cancellation of removal; and eliminated waivers that allowed green card holders and others to retain or regain status.

Most recently, the administration announced it would end Temporary Protected Status for noncitizens from El Salvador, Haiti, Nicaragua, and Sudan, which overnight would transform hundreds of thousands of legal immigrants into “illegal aliens.” (President-elect Joe Biden has promised to review and likely reverse that decision upon taking office, further demonstrating how the president alone controls the day-to-day immigration status of millions.)

It is far from paranoid to harbor fears that a president would attempt to manipulate immigration policies to skew election results. Indeed, it may already have happened. In the months leading up to the election, the Trump administration radically slowed the pace of new naturalizations, preventing immigrants from becoming citizens in time to vote in the 2020 elections. After the coronavirus pandemic hit these shores, the Trump administration suspended naturalization interviews and oath ceremonies, even though both could have been done virtually.

As the Trump administration surely realized, these new Americans skew toward the Democratic Party. Although naturalized Americans are not a monolithic voting bloc—as illustrated by President Trump’s strong showing among Cuban-Americans in Florida’s Miami-Dade County—studies show that naturalized immigrants are less likely to vote for Republicans than native voters. And their numbers are significant. Naturalized citizens make up nearly 10 percent of the 2020 electorate, amounting to 23.2 million voters.

It’s hardly a surprise, then, that the Trump administration slowed down a process that would have created even more Democratic voters on the eve of a close election. And there is evidence that this scheme worked. Boundless Immigration, a technology company that helps immigrants naturalize, estimated that the delays in naturalization disenfranchised over 100,000 would-be Americans, a significant number in an election in which dozens of candidates won or lost by razor-thin margins.

Imagine, then, what will happen if presidents going forward could use their broad discretion over immigration status to pick their voters and shift political power in Congress and the Electoral College away from states with high immigrant populations toward those with lower ones. Why would a future administration choose to grant the relief of cancellation of removal, waive deportability grounds, or expand the categories of claims eligible for asylum if doing so will add to the political power of a state known to support the opposing party?

Republicans are, like the president, keenly aware of the partisan advantages to be gained from excluding undocumented immigrants from apportionment. Trump’s memorandum announcing the change in policy cryptically noted that “one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.” That unnamed state is California. If undocumented immigrants are excluded from the count, California is sure to lose at least one of its representatives in Congress.

Such manipulation of apportionment for political gain was exactly what the Constitution’s framers sought to prevent when it required apportioning representation based on the “whole number of persons.” Writing in the Federalist Papers in 1878, James Madison explained that the apportionment clause protected again the “bias” that could lead states “to swell” their numbers to gain political power. These men assumed that the term “persons” would prevent such gamesmanship. The Supreme Court needs to prove them right.