Legal Docket – Who should the census count?


NICK EICHER, HOST: It’s Monday morning and we’re back for another week of The World and Everything in It. Today is the 7th of December, 2020. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket. 

First, a quick update on the transgender funeral director case from last Supreme Court term.

EICHER: The justices decided by a 6-3 vote that Title VII of the Civil Rights Act of 1964 means employers cannot discriminate based on a new legal concept known as gender identity. 

The word “sex” in 1964 didn’t mean that, but using a literal analysis, the majority arrived at that conclusion anyway.

REICHARD: Well, last week, the funeral home owner who faced that sex discrimination case and lost at the Supreme Court agreed to settle for a quarter of a million dollars. The Detroit News reports that the employee’s estate will receive $130,000. The ACLU, which represented the fired employee, will receive the remaining $120,000. 

The employee, later known as Aimee Stephens, died in May.

EICHER: We’ll place a link to your Legal Docket podcast devoted to that landmark case in today’s transcript. Might be worth going back and reviewing the details of that case.

Now for oral arguments. 

Last week the Supreme Court heard arguments in Trump vs. New York. It’s the latest battle over who’s counted in the national Census. That in turn determines how many seats each state receives in the House of Representatives and how many Electoral College votes. And the data helps divvy up local governments’ share of tax dollars under federal programs.

In short, this is about power and money.

REICHARD: Brief history. Last year, the Trump administration asked to add a question to every single 2020 Census Form that is already on some of the forms. A simple question: Are you a citizen of the United States? To justify adding the question, Commerce Secretary Wilbur Ross stated that it was to better enforce the Voting Rights Act.

But in a contentious 5-4 ruling, Chief Justice John Roberts joined the liberal justices to eliminate the citizenship question on almost all forms.

The majority believed that the reason President Trump sought the answer to that question was strictly political, and that the stated justification was contrived.

EICHER: To arrive at that citizenship number another way, the president issued an executive order to collect it from administrative records—drivers license information, for example.

In July, President Trump announced that the government would not count for purposes of apportioning congressional seats people who are in the country unlawfully.

So he asked the Commerce Secretary for two sets of numbers: one, the total population per state, and two, the total population minus those living here illegally, “to the extent practicable.” That would be the number he’d use to allocate seats in the House.

And that’s what this lawsuit is about. Democrat-led states and local governments along with immigration advocacy groups sued.

It’s not a straight-up red-state, blue-state issue, though. 

If people here illegally go uncounted, then immigrant-heavy states stood to lose seats: blue California and red Texas. But states like blue Minnesota and red Alabama could gain seats that they might otherwise lose because of population shifts.

REICHARD: Regardless, Solicitor General of New York Barbara Underwood attacked the president’s approach to census taking:

UNDERWOOD: The framers wanted a system that could not easily be manipulated, so they decided to count just the persons living in each state. The policy here would for the first time in this nation’s history reject that choice. People who live in a state without lawful immigration status still live there. They are not invisible. And, like other residents, voting and non-voting, their presence requires attention from the government and the need for representatives to give that attention. That is the rationale for—one rationale for including them.

Therefore, she argued, the government should count anyone who resided here on April 1, 2020. “Inhabitant” means usual resident, and therefore includes people here illegally. Just a few categories of people ought not be counted, like foreign diplomats or tourists.

But the president’s lawyer, acting Solicitor General Jeffrey Wall, argued the president has discretion about who to count. A 1992 Supreme Court decision called Franklin says so. Wall also appealed to the wisdom of the founders.

WALL: The test isn’t just where you lay your head at night. It is, as Franklin says, where you have allegiance or an enduring tie. And there’s no coherent theory of political representation that says every illegal alien, no matter how little time they’ve been here or no matter that they are imminently facing removal, is a usual or settled resident. It’s the sovereign’s prerogative to define the political community, and the other side is left to say, look, this is just what the founders wanted. But they don’t have an explanation for why the founders would have wanted it, and that should give us pause because, whatever the founders were, they were not aimless people given to purposeless structures.

A lot of focus swirled around the meaning of the word “persons.” One law directs the President to “transmit to Congress a statement showing the whole number of persons in each state.” During the Constitutional convention debates, the framers called “persons” inhabitants and used that word in a draft. But the Committee of Style later cut it out.

Overshadowing it all? Deadlines. The Commerce Secretary must report to the President on December 31st, and then the President must submit his report to Congress the second week of January. Other deadlines also loom.

Justice Elena Kagan tried to pin Wall down on paperwork: how many people are we talking about excluding? She mentioned the 200,000 people about to be deported; millions in deportation proceedings but not detained.

KAGAN: Okay. So what I’m getting from you is we can get very easily to 4 or 5 million people who you have extensive administrative records on, and you’re saying, well, there’s a matching problem. So you’re 30 days out. It seems to me you either know whether you can do matching or you don’t know whether you can do matching. Why the uncertainty on this?

WALL: Because, until you actually compare the one set against the other set, you just don’t know how many hits you’ll get.

Underwood for the blue states pushed the court to wait a few weeks just to see how much work the Census Bureau can finish. Yet Justice Amy Coney Barrett saw folly in that:

BARRETT: But what if we say that he cannot categorically exclude all illegal aliens? He says, fine, I’m not going to do that. I’m going to count everyone who’s in an ICE detention facility, everyone who’s in removal proceedings, and maybe say all DACA recipients. But I agree, you know, I have reasons for thinking each of these don’t satisfy the inhabitancy requirement. Wouldn’t you just be back litigating those specific issues?

UNDERWOOD: Yes, I think we would, yes.

The court fast-tracked this argument to get to a resolution quickly, given the looming deadlines, not to mention the potential changes at the White House. With the great uncertainty about how much the Census Bureau can do in the remaining time, the justices may punt, and let the apportionment happen as the president wants, and leave it to post-apportionment litigation to sort it out later. We should know very soon.

Two more arguments I’ll cover, quickly. Both involve immigration law. 

One asks, what exactly is a crime of “moral turpitude”? A man from Mexico named Clemente Pereida came to the United States illegally 25 years ago. During that time, he’s worked and supported a wife and three children. Ten years ago, he tried to use a fake social security card to get a job. For that, he paid a $100 fine. But it also triggered the Department of Homeland Security to begin deportation proceedings, which he is trying to stop.

Immigration law says a noncitizen convicted of a crime involving “moral turpitude” has no authority to stop deportation. Problem is, the law isn’t clear whether Pereida’s offense falls under that heading. 

The state conviction record is ambiguous about it. 

Justice Stephen Breyer underscored the idea of ambiguity in the law favoring Pereida.

BREYER: Well, there is a virtue in simplicity in the law. So why isn’t the simple thing to do keeping the law uniform, simple, as much as it can be?

I think a majority of justices leaned that way, so I predict Pereida will be able to stop deportation proceedings.

This last case Justice Neil Gorsuch said felt like the movie Groundhog Day to him!

The question is: across how many documents can the government communicate to a noncitizen about pending deportation hearings? This seemingly small matter comes before the court often enough to make it seem like Groundhog Day. With deportation at stake, you can be sure lawyers will litigate every jot and tittle.

Here, a man from Guatemala entered the United States illegally 15 years ago. Seven years ago he got a notice to show up in immigration court; two weeks later, he received a second notice with the time and place to show up.

He says the law requires a single document with this information, not two. His rationale? The law in question calls for “a” notice to appear. To his way of thinking, “a” means “one.”

The justices sounded conflicted among themselves. 

Here’s one take.  Listen to this exchange between Chief Justice  Roberts and the man’s lawyer, David Zimmer. You’ll hear the chief use the term “stop time rule.” That’s a policy the government carved out for those it classifies as illegal aliens to use to avoid deportation.

ROBERTS: Would the stop-time rule be triggered if the alien received the two documents in two  different envelopes at the same—on the same day?

ZIMMER: I mean, yes, Your Honor,  certainly, if it’s not in the same document, we—we don’t think it—sorry, I guess “no” is the answer, that if it’s in two different documents, it does not trigger the stop-time rule.

The government allows changes to the date of a hearing, too, as Justice Samuel Alito pointed out. Obviously, you’d need to send out another notice for that.

Justice Gorsuch put it this way: hey, let’s just defer to the agency on this stuff; that’s good enough for government work.

Yet other justices seemed sympathetic to the immigrant’s plea. 

So considering how inefficient the administrative state is along with high stakes to illegal aliens, I’d guess a decision in favor of the immigrant. 

And that’s this week’s Legal Docket.


(AP Photo/J. Scott Applewhite, File) In this Nov. 5, 2020, file photo the Supreme Court is seen in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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