Amicus Brief in the Congressional Apportionment Case Currently Before the Supreme Court
Earlier this week, University of Texas law professor Sanford Levinson and I filed an amicus brief in Trump v. New York, an important case currently before the Supreme Court. The case involves a lawsuit by New York and other state and local governments to the Trump administration’s plan to exclude undocumented immigrants from the population counts that determine the allocation of seats in the House of Representatives. As we explain in the brief, the administration’s position goes against the text and original meaning of the Constitution—both that of the original Apportionment Clause in Article I, Section 2 and the modified version enacted in Section 2 of the Fourteenth Amendment.
The brief expands on the points made in much shorter form in my recent Los Angeles Times op ed about the case. Here is an excerpt from the brief, summarizing key aspects of our argument:
The Constitution requires the federal government to apportion congressional seats “among the several States” based on the number of “Persons” in each State. U.S. Const. art. I, § 2; seeid. amend. XIV. In an unprecedented decision, the President has made it “the policy of the United States to exclude from the apportionment base aliens who are not in lawful im-migration status….” Because that policy flouts the Constitution’s text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….
[E]xcluding undocumented immigrants is at odds with the Apportionment Clause’s command that the government base congressional apportionment on the number of “Persons” living in each State. U.S. Const. art. I, § 2. “Persons” is a broad term and was equally broad at the founding. Then, as now, it referred to all human beings.
While that plain language is broad enough on its face to include undocumented immigrants living in a State, surrounding words and text from elsewhere in the Constitution reinforce that the Framers under-stood “Persons” as a broad and general term. For instance, the Apportionment Clause excludes “Indians not taxed” from the apportionment count. Because Indians were considered noncitizens with allegiance to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment base if “Persons
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