Supreme Court conservatives appear ready to OK Trump’s census citizenship question

[Biff Tannen 46060]

Seems like we are due for quite a few fucking amendments.

[TwiceHorn 31984]

1 hour ago, Dahobbs said:

I don't see how you get there. Indians were subject to a separate sovereign, which is why they weren't taxed. Illegal immigrants are very clearly subject to US sovereignty and even pay taxes (and are required to under the law). There is no other sovereign that can claim a right to power over illegal immigrants within our borders.  If anything, I think the best argument is that illegal immigrants would have qualified as "other persons" and been subject to the 3/5ths clause in the original text. 

Well, the concept of sovereignty is pretty elusive I agree.  I don't think it's a particularly good argument, but it can be made.

The argument would be that Indians not taxed are people not rightly regarded as part of the United States, and people unlawfully present and subject to removal are not rightly regarded as part of the United States, despite their transitory presence here (and ignoring the fact that their presence is probably more permanent than transitory).

As I said, I think persons are persons is the better interpretation.  It would take some magical thinking to hold otherwise.

Also, I noted that the practical impact of this is that California, Florida and Texas likely would all lose congressional seats, and electoral votes, which is a net loss for GOP.  

Edited November 30, 2020 by TwiceHorn

[Dahobbs 18183]

1 hour ago, Ghost of LL said:

Doesn't this case get mooted in about 50 days?  As I understand it, this didn't go through formal rulemaking.  It's just an executive memorandum that will be rescinded sometime on the afternoon of January 20.

It would be mooted if not executed before the 20th. But I'm not sure what happens if the President gets his "corrected" count and then the Census Bureau sends it to the states ahead of the April 1st deadline (and prior to January 20). If its already in the states' hands, I'm not sure Biden would have any ability to undo it. 

Edited November 30, 2020 by Dahobbs

[TwiceHorn 31984]

1 hour ago, Ghost of LL said:

Doesn't this case get mooted in about 50 days?  As I understand it, this didn't go through formal rulemaking.  It's just an executive memorandum that will be rescinded sometime on the afternoon of January 20.

I'm not sure this is subject to rulemaking because it's what the executive does with data collected by the DOC/Bureau of the Census.

But I think you are correct that it will be undone before anything happens.  So it's effectively either unripe or moot.

In any event, it seems from reporting that all the justices were skeptical of the administration's position on numerous grounds, if not the "persons" question straight up.

A big issue is exactly what the President would actually report to Congress, as opposed to what he might report.

Edited November 30, 2020 by TwiceHorn

[TwiceHorn 31984]

Well, apparently, somewhat to my surprise, this isn't the first time this issue has come up in a more than theoretical context.

The Democratic 96th Congress had hearings on this issue in 1980. Can't find any illumination online, but it's cited in the briefs.

I would have guessed that this was more a product of the times and of Trump and his institutional racism.  The more things change, the more they stay the same.

Edited November 30, 2020 by TwiceHorn

[Ghost of LL 15664]

1 hour ago, Dahobbs said:

It would be mooted if not executed before the 20th. But I'm not sure what happens if the President gets his "corrected" count and then the Census Bureau sends it to the states ahead of the April 1st deadline (and prior to January 20). If its already in the states' hands, I'm not sure Biden would have any ability to undo it. 

I recall that the Census Bureau said that it wouldn't be able to finalize its numbers before January 20.

In all honesty, I fully expect Biden to tell them to go do it over and actually count the people this time around.  We may not have the 2020 census until some time in 2022.

[Mdhorn 6153]

42 minutes ago, TwiceHorn said:

Well, apparently, somewhat to my surprise, this isn't the first time this issue has come up in a more than theoretical context.

The Democratic 96th Congress had hearings on this issue in 1980. Can't find any illumination online, but it's cited in the briefs.

I would have guessed that this was more a product of the times and of Trump and his institutional racism.  The more things change, the more they stay the same.

Isn't that the truth.  I was listening to Civil War reconstruction and this was happening then, more so than I knew.  Think they said both parties laid claim to the governor position of Georgia.  Interesting times, not so much for the disenfranchised.  

[Left Coast 879]

5 hours ago, Neonmoon said:

Can't wait to see how Miss Originalism Advocate interprets “counting the whole number of persons in each state,” as saying not immigrants. 

Well, it seems she may surprise a few people:

https://www.latimes.com/politics/story/2020-11-30/supreme-court-casts-doubt-on-trumps-bid-to-exclude-from-census-immigrants-in-u-s-illegally

But none of the justices sounded prepared to endorse Trump’s policy, and two of Trump’s appointees — Justices Brett M. Kavanaugh and Amy Coney Barrett — told an administration lawyer they doubted the legality of excluding millions of long-time residents from the census count. 

Barrett said that the Constitution’s wording and original history called for counting all residents, and that that has been the unbroken practice for more than two centuries. Additionally the 14th Amendment says political power will be divided among the states after counting “the whole number of persons in each state.”

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Barrett said the law has defined “persons” as those who reside in the state, not just citizens or voters. 

“If an undocumented person has been in the country for 20 years, even if illegally, why wouldn’t that person have a settled residence here?” Barrett told acting Solicitor Gen. Jeffrey Wall. “And you concede that illegal aliens have never been excluded as a category from the census,” she added.

[TwiceHorn 31984]

1 hour ago, Ghost of LL said:

I recall that the Census Bureau said that it wouldn't be able to finalize its numbers before January 20.

In all honesty, I fully expect Biden to tell them to go do it over and actually count the people this time around.  We may not have the 2020 census until some time in 2022.

From what I can tell, this wouldn't involve actual counting.  Because they were earlier forbidden from asking the citizenship/immigration status question, the count will be the count.

This order would cause Census to use other data to attempt to identify or segregate out immigrant census responders and then Trump or whoever was President, could use that to report a reduced census to Congress.

[Biff Tannen 46060]

SCOTUS just said challenge to dotard excluding undocumented people from census can't happen until the census results come in.  If I understand correctly.  Which I may not.

[FondrenRoad 4378]

On 11/30/2020 at 7:10 PM, Ghost of LL said:

I recall that the Census Bureau said that it wouldn't be able to finalize its numbers before January 20.

In all honesty, I fully expect Biden to tell them to go do it over and actually count the people this time around.  We may not have the 2020 census until some time in 2022.

I've wondered about that myself.  I have long fully expected the Trump administration to toss out legit census forms from blue states and areas in the same way he would like to toss out legit ballots.  From day 1 of the Trump admin, I've expected a 10 to 20% undercount of NYC, and a similar undercount in CA cities.  I overlooked the value of undercounting cities like Houston in red states, but it does allow for increased packing in gerrymandered districts.  Would Biden have the power to do it over? 

And really, even if we had an administration that was interested in an honest count, the pandemic is a curveball that might call for a recount anyway.  

[CowboyFred 1162]

1 hour ago, Biff Tannen said:

SCOTUS just said challenge to dotard excluding undocumented people from census can't happen until the census results come in.  If I understand correctly.  Which I may not.

Yea pretty much.  There’s been “no injury yet” technically because they haven’t been removed from the count.  Mere procedure but could end up fucking shit up down the road.

but you know slapdick in chief will score this as a win for the country and elections should be next.

[Sawbonz 28081]

So the SCOTUS specialist on NPR (? Nina Totenberg?) said basically this means either the census bureau fails to certify its count by the 31st in which case the count will be completed by Biden admin or it does get certified, goes to the House, and the clerk in the House sends it back to census bureau to check for errors and so gets completed by....the Biden admin. 
 

So much Trump winning!!

[TwiceHorn 31984]

11 minutes ago, Sawbonz said:

So the SCOTUS specialist on NPR (? Nina Totenberg?) said basically this means either the census bureau fails to certify its count by the 31st in which case the count will be completed by Biden admin or it does get certified, goes to the House, and the clerk in the House sends it back to census bureau to check for errors and so gets completed by....the Biden admin. 
 

So much Trump winning!!

Yeah.  This isn't the "count" per se, which is the result of the actual answering of census questions.  That goes on as usual, on-time or otherwise.

From that count, the President "ascertains" the number of House seats for each state.  The EO was to exclude unlawful immigrants, using other data (such as immigrants in the court system per state), from the count of persons before ascertaining apportionment.

Part of the problem was that the precise form of fuckery Trump proposed to get up to was not yet determined.

Trump is not going to get to do the ascertainment, period.

Edited December 19, 2020 by TwiceHorn

[TwiceHorn 31984]

8 hours ago, CowboyFred said:

Yea pretty much.  There’s been “no injury yet” technically because they haven’t been removed from the count.  Mere procedure but could end up fucking shit up down the road.

but you know slapdick in chief will score this as a win for the country and elections should be next.

I dunno.  The liberal types all wanted the Court to rule that anything that attempts either a) not to count "all persons," except those pesky Indians or b) base the apportionment performed by executive on anything other than the count of all persons, is unlawful.  That's what the dissent argues.

That's fine as far as it goes.

But the majority's point is basically that they would be giving an advisory opinion on a not-quite-concrete controversy.  That's usually a pretty good policy for a court to adopt.  It can be used to dodge questions, though.  I don't think this was really one of them.