Courthouse Steps Oral Argument Teleforum: Trump v. New York

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On November 30, 2020 the Supreme Court heard oral arguments in Trump v. New York. The case has garnered widespread media attention and arose over the attempt by the Trump administration to exclude noncitizens from the population numbers for the purposes of apportioning seats in the House of Representatives. The Supreme Court will decide whether New York and the twenty states that filed suit against the administration have standing, and whether policy is within the power of the President's discretion under the provisions of law governing congressional apportionment. The case will bear on the short- and long-term future of congressional elections.

John Baker joins us to discuss the case and its implications. You can read his SCOTUSBlog article on the case here.

Featuring: 

Prof. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University

 

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Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

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Nick Marr:  Welcome, everyone, to The Federalist Society's teleforum conference call as this afternoon, November 30, 2020, we have a special Courthouse Steps Oral Argument teleforum on a case recently heard today in Trump v. New York.

 

      I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our expert.

 

      We're very fortunate to have with us this afternoon Professor John Baker. He's Professor Emeritus of Law at the LSU Law Center. He's been teaching by Zoom as a visiting professor this fall at Peking University School of Transnational Law.

 

      Professor Baker's work on the census dates back to the last census when he published an op-ed in The Wall Street Journal called "Our Unconstitutional Census" and was one of the lawyers representing Louisiana in a challenge to the census. In 2019, he spoke at Federalist Society events and wrote op-eds on the citizenship questions and Supreme Court decision.

 

      More recently, he's filed an amicus brief in the case we're discussing today on his own behalf with the assistance of Professor John Eastman, and he has just published a piece on SCOTUSBlog, and it's available on The Federalist Society webpage that's promoting this event, so go and check that out for more of Professor Baker's thoughts.

 

      After Professor Baker gives some opening remarks, we'll have a time for audience question, so be thinking of those and have them in mind for when we get to that portion of the call.

 

      Without further ado, Professor Baker, thanks for being with us today. The floor is yours.

 

Prof. John S. Baker:  Thank you very much, Nick. I just looked at an email I got from The Hill and the headline is "Conservative justices signal willingness to let Trump proceed with immigrant census plan for now." I hope that what I am able to offer you is a little more insightful than that whole article that follows.

 

      In any event, it was an interesting and, as Justice Alito said, frustrating time this morning in this argument. The argument ran 80 minutes, which is longer than usual, and it concerns the President's executive order back in July that he wanted from the Department of Commerce, and specifically the Census Bureau, a list or a number related to the number of illegal aliens in the country to the extent that this was feasible and consistent with law.

 

      Immediately, litigation followed from that. The way I would summarize the argument this morning is that it focused more on the justiciability question than it did on the merits, and that really is the basis for, I think, what the headline in The Hill was.

 

      But it wasn't just "the so-called six conservatives." This is a real conundrum for all of them, and there was a lot of follow up from one justice to another, regardless of ideology, because simply getting to the nub of the problem is difficult, and that's why so much of the time was spent on the justiciability question.

 

      The question of the President's power to do what he wants to do was touched on and, I think, and wished it had been touched on more in one sense. But as I go along, I think I'll be able to show you that that is as a minefield yet.

 

      Just a little background on what happened. As I mentioned, the executive order by the President in July, exactly July 21. Well, on July 24, only three days later, this suit was filed. This wasn't a single plaintiff; there were multiple states and nonprofits involved. They must've had most of their complaint already written even before the EO was published. Maybe they got some kind of a leak from somewhere that it was coming because I don't know how they would've been able to put all this together that quickly. But they did.

 

      They invoked a three-judge court pursuant to 28 U.S.C. 2244. For those of you old enough to remember, three-judge courts used to be quite common on constitutional issues, but Congress reformed that, really at the behest of the federal judiciary, because three-judge courts get an automatic appeal to the Supreme Court.

 

      But in election matters, obviously, they're very timely and so it is appropriate that there be a speedy appeal to the Supreme Court, or at least a speedy if there is a right of appeal as opposed to certiorari, and there is on three-judge courts.

 

      On September 10, the three-judge court in New York issued a judgement, a declaratory judgement, and an injunction, a permanent injunction, in favor of the plaintiffs and against the government.

 

      On the justiciability issue, at that level, it was primarily a standing question. The three-judge panel found that "President Trump's memo had 'a chilling effect' on participation in the census." Now, this is going to be important because the justiciability issues are slightly different when they get up on appeal.

 

      The court thought that the fear that illegal immigrants would have caused by what President Trump was doing was such that they wouldn't participate in the census. Or, if they weren't fearful, they figured that there'd be no point in participating in it. Either way, the states were going to suffer some kind of an injury.

 

      Of course, the second point on standing is cause by the defendant. Well, of course President Trump caused all this fear.

 

Third, redressability. Well, the redressability was, they said, that their order would be sufficient to block the harm.

 

In any event, on the merits, they found that the President's proposal of eliminating illegal immigrants violated the language that is common to the Reapportionment Act, the Fourteenth Amendment, and Article 1, the original section dealing with apportionment. They rested this on not only the statutory but the constitutional language about persons. It's important to come back to that later.

 

The declaratory judgment went into effect. The permanent injunction was applicable to everyone except the President. That issue got some attention in the argument, and the question was, in part, whether, even though the President wasn't enjoined, would he respect and follow the declaratory judgement.

 

This is a complex case, and it was fully reflected in the argument. As indicated by the introduction, I have very definite viewpoints about these issues, so this is not going to be a completely detached explanation.

 

But to some extent, we have to go over certain basics, and that is, on the merits, that question does not receive, as I said, as much attention as does the justiciability question. For reasons that I'll explain, that may be good or it may be bad, from my point of view, and those who think that what the president did was perfectly defensible. Indeed, I go much further and say that his order should exclude all foreign nationals.

 

The SG, acting SG Jeffrey, well, he did a very good job in oral argument, I thought. He knew everything. He had good answers to everything. Fortunately, from my point of view, he didn't get much into the merits, and that's why he had a good argument.

 

Interestingly, he kept saying that he wouldn't be at all disturbed if the Court decided to get to the merits. He wanted them to get to the merits. I think that was a big mistake, and I'm hopeful that they don't get to the merits.

 

Let's go to the issues. First of all, as I said, justiciability. We have a new issue up here and that is mootness because the government is arguing, rightly, that the chilling effect no longer exists because the count in the field is over. So, whatever chill there was in the past, the weather has changed now. There's no more chilling effect.

 

Then, it came to the issue of standing. Most of what they were arguing in terms of the plaintiff's below is about what might happen because nobody knows exactly, and that's for two reasons. One, the numbers are not yet available. That is, there's an involved process that we'll talk about a little bit as we go along. But they're not available, so we don't know, at this point, what the effect is going to be. Probably more importantly, there's no real way of knowing what the President's going to do. As everybody knows, he's rather unpredictable.

 

The argument on standing is there is no determination or ability to determine the harm because, at this point, it is much too speculative.

 

Interestingly, in this discussion, there were several references to a D.C. Circuit three-judge court opinion written by Judge Katsas just at the end of last week. His opinion is, as always, extremely thorough. He came down on the issue of rightness. Not standing but prudential rightness in the context of the non-Article 3 -- he didn't reach the Article 3 issue of standing. He went into rightness.

 

Judge Kavanaugh, at one point, went through an interesting discussion about the overlap between standing and rightness and distinguishing prudential rightness from other Article 3 issues. Only a federal courts person or somebody who's litigating this stuff all the time would really have a great deal of interest in that.

 

In any event, it was an important consideration as to whether they really ought to get into the merits of this thing given so many uncertainties. The certainties are going to, in large part, have to do with the number.

 

Related to the justiciability issue is, obviously, timing. Timing. So, what is the timing? By the end of the year, the Census Bureau is supposed to send to the president their numbers; what they've come up with. The question comes down to, in a way, well, are there two sets of numbers? What is the meaning of the census?

 

As the government's brief pointed out several times, the word "census" is used in two different contexts. That is, census means gathering the numbers, and then, census means the final numbers that are produced. The question allows the process that the Census Bureau itself goes through and hands off to the secretary of commerce, and then, is relayed to the president. By the 10th of January, the president must send to the Congress a statement showing, one, the population base, and two, the apportionment; the apportionment for each state. The number of seats in the House of Representative that they have.

 

It's really around this point that many of the justices are really somewhat, shall we say, uncertain. Then, there's a good deal of concern, I guess, about what it is they know and when they will know it.

 

Justice Alito put it this way. He said, "The posture of the case is quite frustrating," meaning, as he went on to discuss, are we talking about a relatively small number? Are we talking about a very large number? Other justices picked up on this also. Wall repeatedly said he can't say how many they will be able to match from the administrative records.

 

Now, let me talk a little bit about what he's referring to—the administrative records. The administrative records have been used to adjust the numbers. The one that I'm most familiar with involves college students. In the last census, I got a call from the Census Bureau saying, "We see you have students in college. Are they in your state where you live or are they in a different state?" I said, "No, they're in a different state."

 

Well, they didn't tell me, but I knew that they were doing. What they were doing is they were going to deduct my children, who are domiciled where I live but who were attending school out of state. The Census Bureau has made the determination—wrong, I think—that they will be counted in other states. This is part of the adjustment process that the Census Bureau does. This process, often using administrative records, has been used for a long time, and the Court, in a previous case, has approved it. So that's what's going on, in part.

 

This gets complicated because when the President issued his executive order back after the citizenship case decision, he noted that, at that point, they had 90 percent of the administrative records already available to the Census Bureau. That was due to the fact that the Commerce Department and Census Bureau had been collecting some for a long time anyway. But the places that they didn't really have enough information were the State Department and especially the Department of Homeland Security.

 

The issue really was, well, what's involved? If you've got these administrative records and you had them a year ago for 90 percent, shouldn't you have 100 percent by now? And what's involved in the matching process? There was an attempt by SG Wall to explain that, but it was never fully understood, I don't think, by any of the justices. They continued to say they didn't know how many matches they would be able to make even though they were working as hard as they could to determine this.

 

The impact of that is that if the numbers are relatively small and we're not talking about a great deal that would shift a representative from one state to another, that's one thing. But, as Justice Sotomayor pointed out, you should know this by now if you've been working on this for over a year, and you say that you're going to eliminate as many as feasible, and consistent with the law. If that's a large number, it could have a huge impact.

 

Now, that affects the justiciability question. How is that going to disrupt the whole process of redistricting? And is that a matter that can be dealt with adequately after the President sends the apportionment numbers to the Congress by January 10? Is there going to be enough time?

 

There was a great deal of concern about this, and no clear resolution. Wall honestly couldn't give them a resolution of it.

 

Does that make a difference? Well, Justice Kagan thought that it was possible we're talking about four to five million people that might be in some way affected. But again, that seems to be a heavy consideration on all the justices. Then, as I mentioned, it's not clear what the President would do.

 

The argument made by the solicitor general in the written briefs I was very critical of in my SCOTUS piece because he claims that the President has the discretion to eliminate illegal aliens, to do so selectively, and no obligation to do so. There's no standard to that, and on what basis are you saying you can do some but not all?

 

That didn't come up, really, in the oral argument. The solicitor general was focusing on certain defined categories, notably at least some, he said at one point. And he mentioned several times those who are being detained and are about to be deported.

 

This is where I don't think the argument in the brief is strong enough because it doesn't really make a constitutional argument. The problem with that is that the ACLU, in particular, better than the New York solicitor general, they are arguing that from the beginning, this is only about where you reside. They're equating residing with inhabitant. Now, the government brief says, well, it's not just residing. You have to have a connection to the place. The issue, however, is they did not really ever make a constitutional argument that was clear at all.

 

By the way, this whole situation—and it couldn't be said—the mess that's been created is due directly to the fact that the Supreme Court decided as it did in Department of Commerce v. New York last year when it said the citizenship question could not be put on the census. That's why they switched to the administrative records.

 

In some ways, the administrative records may be more accurate, but if you don't have all the information you need in the administrative records, how are you going to allocate and eliminate certain people, but not other people, because you don't have sufficient information? That is the core of the problem and the reason, I think—as I think The Hill was indicating—that it is likely that the case will be dismissed on justiciability grounds is the great amount of uncertainty at this point.

 

Now, I want to go to the merits question, which was only briefly talked about. That is, the merits question, on the first go around, was only raised by Judge Barrett. This is where I think the government may have trouble. We know that she is a textualist and an originalist. They have not made in their brief, and they did not make in their argument, the kind of argument that a textualist and an originalist would need to go with their argument.

 

When you first read the language of Article 1 and the Fourteenth Amendment and the Reapportionment Act, you may think, as I did until about 11 years ago, that of course everybody has to be counted. But when you go back and look at the drafts of the Constitution and the use of the word "inhabitant" in those drafts up until the final draft, and the final form was not to change any substance of what the members of the convention had agreed to. The Supreme Court has recognized this. For the government merely to rest primarily on a statutory argument and the case of Franklin, it seems to me, is a weakened argument, at least for originalists.

 

If we get a decision on the merits without adequate explanation of the constitutional argument, I'm not hopeful about what the decision on the merits might look like.

 

Nick, with that, I think I'll stop and take whatever questions we have.

 

Nick Marr:  Great. Thank you. I'll wait a second here, Professor, and see if anyone comes to the front. Got a couple questions now. We'll go to the first one.

 

Jack Park:  Hey, John. Jack Park. Thanks for the discussion. Isn't the fundamental problem with this thing is that it's a political question? It's all and only about political power.

 

Professor John S. Baker:  Well, it is about power, that's right. But it's governed by the Constitution and the Reapportionment Act. What they didn't do adequately is to distinguish between the statutory use of this on this issue and the constitutional one.

 

      In 1929, when the Congress, having failed to reapportion after the 1920 census, they kicked it to the Census Bureau, and they created a statute to govern this. It's another one of Congress' attempts to avoid accountability because they can't come to an agreement. Some of them had the assumption that you had to include everybody, but not all had that assumption. As Congress usually does, they write legislation in such a way that doesn't decide clearly, or lay out clearly, what law they're actually laying down.

 

      Over the years, for most states, if they're not facing in the immediate census results a change in representation—like Louisiana did in the last census, like Alabama is facing after this census—they don't care about that aspect. They ought to because the constitutional purpose is all about, and only about, representation. Congress has freighted the census results with statutory purposes of allocating funding. For all of the other groups and states, that's the most important thing. That's why students are, when they're from other states, they're still signed up in the state where they're going to college.

 

      All of this has been decided by the Census Bureau with really not much, if any, input from Congress. It's been a political game within the Census Bureau. So, you've got the problem that we have a statute that ends up allocating funding, and it may well be that illegals should be included for purposes of funding. But it's not just illegals. It's foreign embassy staff. It's foreign students. All of these people are included, and fine, that may be okay for funding because they're putting costs on the jurisdiction.

 

But there is only brief reference by the government to the issue of representation. In fact, the ACLU had the guts to say that illegals should -- "They're here. They need to be represented." Well, wait a minute. What right do illegal aliens, or even legal aliens, have to be represented in our Congress? Have to be represented derivatively in our Electoral College? That issue never is clearly stated by the government.

 

There's one paragraph, at most, in the original brief that talks about representation, but they pass up the constitutional argument and rely only on the case of Franklin v. Massachusetts and the statutory argument and the discretion involved. I think, on the merits, it's a very weak argument.

 

Jack Park:  Okay, thanks.

 

Nick Marr:  Okay, we'll go to our next question now.

 

Caller 2:  Yes. My question is what is the impact on all of this on the timing of Biden taking office, if I may ask?

 

Prof. John S. Baker:  Well, it's supposed to be settled by January 10. But if Trump does anything of what he has said he wants to do under the EO, there will be litigation that will follow. If Biden is in office, the litigation, obviously, will be run by a Democratic Department of Justice, which will not support, I suppose, what President Trump has done.

 

      But the reason why it's important to get it out is that states like Alabama that may be affected, they will be able to litigate even if the Department of Justice repudiates what Trump did. The Court knows there's going to be more litigation on this. There's no question about that. That litigation will occur after the next inauguration.

 

Caller 2:  Thank you.

 

Nick Marr:  We'll go to our next question now.

 

Caller 3:  Yes. Two questions. One, you said that Justice Barrett focused on the constitutional matter. Did she, in her questions, or did any other justice, discuss the distinction between funding and representation, the statutory versus the constitutional? Did any justice address that? Go ahead, answer that. I don't want to make it too complicated.

 

Prof. John S. Baker:  Well, there were some separate questions, not many, about funding. But nobody mentioned a distinction between the two. No, they didn't. No one.

 

Caller 3:  And I assume your amicus brief addresses that issue?

 

Prof. John S. Baker:  It does. But who knows whether it got by the law clerk's screening. Now, I got to say this. Justice Alito was going down a very good line and he got cut off twice by the Chief. The first time, Alito just ran by being cut off. He started with, "Do you agree" -- it was a great cross-examination of the other side. "Do you agree that tourists should not be counted?" "Yes." "Should illegals be" -- I forget how he did it. Anyway, he went from tourists to a tort.

 

"Well, what if the tourist then overstays his or her visa and is arrested and is in jail? Should that person be counted?" He got those two questions out and there was a waffly answer because the advocate—I think it was Ho, but it may have been Underwood—recognized where he was going because his point is, okay, you can't count a tourist here, but if the tourist overstays the visa then you can count them.

 

That's where he was going, but he got cut off. But at least he got the second question out after the Chief tried to cut him off the first time. And he wasn't trying to cut him off. I'm not implying he was cutting him off because of the content of the question. There was a matter of time that was allocated to each justice.

 

Caller 3:  Was there any recognition by anybody on the panel of the fact that the Court, Roberts, created the mess that they're now trying to deal with?

 

Prof. John S. Baker:  No, no. Nothing. Nothing. It would've been in politics for the government to do that.

 

Caller 3:  I realize that, and I'll [inaudible 00:31:45] my answer because Justice Alito's speech to The Federalist Society a few weeks ago did invest, read between the lines, very clearly expressed some strong irritation with the recent behavior of the Court, and I thought maybe that might've surfaced a bit today.

 

Prof. John S. Baker:  No, but hopefully it surfaces in the conference and among the different justices as they deliberate.

 

Caller 3:  Well, thank you. Good luck. I hope they read your amicus.

 

Prof. John S. Baker:  Yeah, but it's got to get by the screening pool. Either it did or it didn't. I don't know.

 

Nick Marr:  John, we don't have any questions in the queue right now, so I'll hand the floor back to you if you want to cover anything. Oh, we actually do have a question. Caller with the --

 

Prof. John S. Baker:  Well, let me cover something before you -- this is a short one. In the first questioning around, when it came to Justice Barrett, she referred to undocumented workers, and I thought, "Oh, no." And then, it must've been after that, although possibly before, Justice Sotomayor kept referring to illegal aliens, illegal aliens, illegal aliens. The next time it came around to Justice Barrett, she said illegal aliens. So, presumably, she was trying to be polite as she entered the new circumstances of her life.

 

Nick Marr:  All right. Next questioner.

 

Caller 4:  Yeah. I want to know who are the winners and the losers, depending upon how the litigation goes? I'm assuming if illegal aliens are included, New York and California win and some other states lose. But how does it flush out?

 

Prof. John S. Baker:  That's a good question, and we did some of the numbers back ten years ago. If you wash out all illegal aliens, the state that suffers the most is California. The estimates on how many they would lose vary from two or three to six or seven. That's related to the numbers. The official number that's mostly bandied about is either 11.5 or 12 million, which is a ridiculously low figure based on other information.

 

      Internally, the Commerce Department, I was told, estimated that there were 25 million illegals in the country. Shortly after, that internal concept or notion made its way among some people. Then, a Yale study came out and said there were up to—they gave a large range—from 16 million to 26 million, I think it was. But I know the upper end was 26 million.

 

      If you do it this way. If you say that there were possibly 15 million and you added to that the four or five million legal aliens—legal aliens—or you take that spread and you go up the other end of 26 and you add four or five there—let's say 30. For foreign nationals, we can be talking between 20 and 30 million.

 

During the last census, the apportionment included, in each congressional district, approximately 750,000 people. Well, just do the math and see how many seats, if you packed them all into the same district. It's a huge number. The amount of representation that foreign nationals have in the Congress and the Electoral College is approaching ten percent. That's outrageous.

 

      Then, when you spread them out in districts, as they are, there's actually more influence. Because if you've got a sizeable amount in any congressional district, the person running for office faces fewer voters and yet knows the influence of those numbers because of the relatives who may be citizens and simply all of the other circumstances of costs that they want more money for their district.

 

      So, it has a huge impact, especially in California, but it also has an impact in Texas and in Florida. Texas and Florida, red states, they would lose as well. So, it's not purely a partisan thing, Republican versus Democrat. Yes, California's prominent, and yes, New York is prominent. But there are other states as well. Probably, on balance, the Dems would lose more than the Republicans but not probably that many more.

 

      Some years ago, I asked a prominent political consultant Republican from Virginia about this, and I said, "Why don't the parties do something?" He said, "Well, you know, we consider it a wash, and so why bother?" Well, wait. What about the Constitution? What about the concept of representation? That doesn't enter into the calculus of a lot of "practical politicians."

 

Caller 4:  Thank you.

 

Nick Marr:  Okay, we don't have any questions in the queue right now, Professor. Oh, we just got one. Ask and ye shall receive. Okay.

 

Caller 5:  Professor Baker, thanks for the talk today. Quick question. There seems to be a consistent theme over the last four years of what I think, charitably, one might call bad lawyering for some of these arguments. Is that consistent, from your experience, with previous administrations, or is there a flavor here that the lawyers being asked to make the arguments are just having trouble getting there?

 

In other words, they just don't believe in their own arguments that they're making. Is this sort of normal that arguments, like you're suggesting, the difference between representation and the budget allocation, that there isn't a good distinction made there? Because it seems like those kinds of gaps have been occurring more and more, but maybe that's just from so much media that's occurred the last four years.

 

Prof. John S. Baker:  Well, I think that's an outstanding question, and if I had planted a question, that's one I would've planted. But I didn't plant it. First of all, let me say that Wall is a very talented, bright guy. As I said, he made a strong argument.

 

      I know that in the administration, two things are going on. One, there was a struggle, I'm told by others, between making the constitutional argument or relying on Franklin.

 

      Now, certainly any argument anybody would've made here should've cited and relied, in large part, on Franklin but not exclusively on Franklin. I don't know what the debate was internally, but I think the uncertainty of the ability to finally do all of the matching was a big factor, I'm certain.

 

I must say that I do know that in the Census Bureau there was a lot of resistance to all of the things Trump wanted to do. They didn't want the citizenship question, and there would be no reason why they would want this because they have been dogmatic that what they've been doing for years is the right thing under the Constitution.

 

      Ironically, it's the Census Bureau that is making the constitutional argument that lines up with the ACLU. They're invested, actually, against the President on all of this, the majority of them in that Census Bureau.

 

      But what they've been doing for years in the Census Bureau is all about money. They have let the constitutional issue to the side, and it's driven by funding issues. So that's one thing. I don't know exactly what all of the considerations that went into the deliberate choice not to make the constitutional argument, and I know it was a deliberate choice. So, there may be legitimate reasons.

 

      The brief was done, at least at the lower level, it would've been done before Justice Barrett was confirmed, so that may have had an influence. But not all members of The Federalist Society have followed Justice Scalia's lead in understanding the structure of the Constitution. We've got people who know cases and they can read a text, but they don't understand the structure.

 

      This is a structural argument, and the structural argument was not made. I actually tried to get through to DOJ, through a friend who is in DOJ, and he was told, "Don't talk to anybody on the outside." Well, guess what? If there's a Biden Justice Department, you will not find them not taking in input from their friends on the outside. This DOJ apparently won't do that.

 

Nick Marr:  Okay, we've got a next question.

 

Caller 6:  Thank you, Professor, for an excellent summary. I love counterfactuals, and I wanted to ask if this argument had taken place, let us suggest, 200 years ago, would slaves have been entitled to representation?

 

Prof. John S. Barker:  Yes. Three-fifths.

 

Caller 6:  And would Indians have been [inaudible 00:42:36]?

 

Prof. John S. Barker:  No. Indians [inaudible 00:42:38] were not. Look, the failure to go into the history and the text and the meaning of inhabitant. I don't know whether they were just unwilling to do it, but here's what the problem is. Historically, over time, at the beginning, we were encouraging immigration. George Washington complained that the first census was too low. We had more people than that.

 

      The beginning, although Congress had the power to naturalize, the states, as states, had the power to confer state citizenship. That's why slaves were not citizens because the compromises in the Constitution left them with the power to determine who could vote.

 

      But the anti-slavery people in the Constitution, Hamilton and Gouverner Morris—especially Gouverner Morris who wrote the last draft—he didn't want the word "slave" anywhere in the Constitution. Some people said, "Well" -- thought that they were just trying to hide it. No, he didn't want it to stain the Constitution. That was the whole point.

 

      In any event, the slaves and indentured servants were counted as inhabitants. Back then, women didn't have the right to vote. They were citizens and they were counted. So, inhabitant meant more than citizen, and today it means more than citizen. It means citizen and permanent legal resident. That is, somebody who has a green card. Somebody who actually is here not only legally but is on a track where they can become a citizen. They are U.S. nationals.

 

When you come into the country and you're in an airport, there are two lines: one for citizens and permanent legal residents and one for everybody else. If you're not a citizen or not a permanent legal resident, you're not an inhabitant. You're not in our political community.

 

      In the beginning, states were able to invite people to come in, and they wanted that, and certainly the territories wanted it so that they could get statehood. If you cross the Atlantic in a ship, chances are you're staying here. But at the beginning, yeah, you resided here and the government simply says, "Well, you have to have a political connection or a loyalty to the country."

 

Those who have studied -- those who are lawyers or went to law school will remember civil procedure and the diversity of citizenship. The whole issue is where's your domicile? You can have multiple residences but only one domicile. That's your permanent legal residence, at least for the time. It's the place where you have lived, and if you're not there now, you at least intend to go back to.

 

      That concept, which equals inhabitant in some of the dictionaries, totally ignored here. It's a complicated argument. Wall did argue that for the first century, immigration wasn't an issue. Even at the time of the Fourteenth Amendment, there were no limitations on immigration. Somebody who came here and was going to stay here permanently, which they could do legally without a visa, then they were considered an inhabitant.

 

But all of that changes once you start getting restrictions on immigration. We now have a new category between legal and illegal. Not everybody who is here is an inhabitant. Then, when you add air travel to it, which is relatively recently, then you're getting many more tourists than you've ever had, the phenomenon of foreign students coming into the country. All of this changes, and these distinctions are not being made.

 

Caller 6:  Well, just as a follow up. How did the states lose their power to grant citizenship in the state?

 

Prof. John S. Baker:  Well, you still can, and we still -- it's not done formally, but for federal court purposes and diversity of citizen jurisdiction, where you are domiciled, in what state are you a citizen, is still an important question.

 

      The Fourteenth Amendment that makes everyone born in the United States a citizen—born in the United States under the jurisdiction of the United States, a citizen—gives priority to that. Whereas, in the past, the states would've been primary in terms of at least citizenship and voting. That changes with the Fourteenth Amendment and certainly the Fifteenth Amendment on voting.

 

      What happens over time when you go from the Fourteenth Amendment to the Fifteenth Amendment, the Nineteenth Amendment to vote for the women and the 18-year-old vote amendment, I think it's Twenty-Sixth. We tend to equate citizenship with voting. If you're a citizen, you get to vote. Well, that's not true. Those under 18 have no right to vote, but they're citizens. Permanent legal residents have no right to vote, but they're inhabitants.

 

      Representation, although it's close to being equal to the right to vote, it's not equal to the right to vote. When you count foreign nationals in the equation or the basis for apportionment, you are saying they are inhabitants and they are entitled to representation in the House and the Electoral College. That is the argument that needs to be made, and the government didn't make it.

 

Caller 6:  Well, thank you. Very interesting.

 

Prof. John S. Barker:  Thank you.

 

Nick Marr:  Okay, Professor. I think we're all out of questions, so I'll send it back to you for any closing you might have, and then we'll close it out this afternoon.

 

Prof. John S. Barker:  No, I just -- if there is any reference in any of the opinions to the merits in this case, I hope it's not a majority because there really needs to be far more briefing on the question of inhabitant and who is entitled to be included in apportionment.

 

My position is that we have to exclude all foreign nationals, which would mean that commerce, either through a citizenship question next time or through more complete administrative records, is going to have to be able to get those numbers in order for it to be possible to restrict to those who are U.S. nationals to being included in the apportionment.

 

      That is separate from the statutory question of granting money based on what the census numbers are, which include all foreign nationals. That's a question for Congress. Congress wants to distribute more money to different states. They have the prefect right to do so. That's separate.

 

Now, as a policy matter, that may be not a good policy because then that encourages states like California to entice more foreign nationals into their state in order to increase the amount of money that they're receiving from the federal government.

 

      With that, I'll end it.

 

Nick Marr:  Great. Thank you. On behalf of The Federalist Society, Professor Baker, I want to thank you for the benefit of your valuable time and expertise this afternoon. Thank you to the audience for calling in and for your great questions.

 

As always, we welcome your feedback by email at info@fed-soc.org. Keep an eye on your emails and our website for announcements about upcoming teleforum conference calls. We've got a busy week at the Supreme Court, so be tuning in for our Courthouse Steps Oral Argument reviews.

 

Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.