There are many drivers behind the new nullification crisis that the left is stoking over immigration, but perhaps the most significant political one is that the Trump administration’s mass deportation policy poses a greater threat to Democrat Party power than perhaps any other single initiative.
If federal authorities were to successfully remove millions of illegal aliens from the country, some estimates suggest it would result in the reallocation of nearly a dozen House seats and electoral college votes. Billions of dollars in taxpayer funding would be redirected out of blue states and into red ones.
That is because the census figures used for congressional apportionment, redistricting, and redistributing federal funds have historically counted all residents including illegal aliens. On balance, this has benefited Democrat-led states — where such populations are largely though not exclusively concentrated — over Republican-led ones.
The projected outmigration of citizens from blue to red states would compound the negative effect of the deportations for Democrats as we head towards the 2030 census, potentially swinging control of the House and the presidency in Republicans’ favor going forward.
Missouri Case
Thus, defeating the Trump administration’s immigration policy by any means necessary may be seen as an existential imperative by the left. The Minnsurrectionists and their comrades-in-arms across the country, including in the courts, are trying to stymie the president’s deportation push. But Missouri has just filed a lawsuit that could provide critical insurance against the continued distortion of our political system by the non-citizens who might remain.
Missouri claims that by counting illegal aliens and temporary visa holders during the 2020 census, federal authorities robbed it of one House seat. Should that practice persist, it alleges the feds will rob it of another such seat following the 2030 census. Asserting that the counting of these populations in the census, and apportioning accordingly “steals federal representation from Missourians and transfers it to States who artificially inflate their population by harboring illegal aliens,” the Show-Me state is challenging the practice’s constitutionality and legality.
Missouri seeks to prevent federal authorities from unduly awarding an estimated 11 House seats and electoral votes in 2030 to left-leaning states with large illegal alien populations, such as California, Illinois, and Massachusetts. If successful, the Census Bureau would count only Americans and legal permanent residents in the census.
The state has asked the court to both prohibit the federal government from including non-citizens in the 2030 census and 2031 apportionment base tabulations, and direct authorities to redo the 2020 census and 2021 apportionment calculations to exclude such populations, and transmit the results to the state — presumably for retroactive correction.
The Constitution and Apportionment
The crux of Missouri’s case is that the Constitution is a compact between the government and the people. Representation is core to that compact. And those who are present illegally and/or temporarily are neither party to that compact nor entitled to representation under it.
Section 2 of the 14th Amendment, which sets forth the basis for apportioning House seats, instructs that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
Missouri presents a compelling case, based on an extensive review of legal precedent and history, that the “whole number of persons” in each state refers to a state’s “inhabitants;” that a state’s inhabitants consist of those “legally domiciled” therein; and that to be so domiciled, a person must have a “lawful intent to permanently remain” in a state, and an ability under the law to do so. Illegal aliens and temporary visa holders therefore may not be counted for purposes of apportionment.
To substantiate its view that “persons” means “inhabitants,” Missouri notes that drafts of the Constitution’s original apportionment clause — which would be modified by the 14th Amendment in 1868 to encompass freed slaves — referenced “inhabitants.” Also, the Federalist Papers indicated that the census count and apportionment figures would include “inhabitants” within each state. And every census statute passed by Congress prior to the enactment of the 14th Amendment “provided for an enumeration of the ‘inhabitants’ of the United States.”
“Although the final version of the original Clause did not use the term ‘inhabitant,’” Missouri states, “there was broad consensus that this was not a substantive change,” citing to the 1992 Franklin v. Massachusetts case.
The use of the word “inhabitant,” would have “been understood to reference and incorporate the concept of domicile,” Missouri asserts, referencing authoritative Founding-era international law writings, correspondence from John Adams, and relevant jurisprudence.
