(CMC) — New York Attorney General, Letitia James, is leading a large coalition of states, cities and counties before the United States Supreme Court in arguing against President Donald Trump’s attempts to once again, leave millions of undocumented Caribbean and other immigrants out of the apportionment base that establishes the number of members in the US House of Representatives.
Despite numerous losses in its efforts to politicise the 2020 Decennial Census, James told the Caribbean Media Corporation (CMC) that Trump is again seeking to violate “basic constitutional and statutory commands”.
James led the coalition in arguing before the US Supreme Court that the Trump administration must count the “whole number of persons” residing in the country for apportionment, “as the US Constitution and the Census Act unambiguously require”.
“President Trump’s illegal proclamation is the latest in a long list of anti-immigrant actions and statements he has made since the beginning of his first campaign,” James told CMC, adding “the US Constitution and the Census Act are crystal clear, every person residing in the US during the census, regardless of legal status, must be counted”.
“And despite this lame-duck president’s repeated attempts to politicise the census and strip immigrant-rich states, like New York, of representation, the simple truth is that no one ceases to be a person because they lack documentation or ceases to live here because the president would prefer them to leave.
“That’s why we filed this lawsuit and numerous others like it before. We will continue to do whatever is necessary to stop the president from putting politics above the law,” James said.
In July, the New York Attorney General led a coalition of states, cities and counties in filing a lawsuit against President Trump, US Secretary of Commerce Wilbur Ross, and others after they announced that they would leave millions of undocumented Caribbean and other immigrants out of the apportionment base that follows the decennial census count.
The lawsuit sought to stop the Trump administration from violating the longstanding constitutional and statutory requirements to count the “whole number of persons” residing in each state for apportionment, without regard to immigration status.
In August, James filed a motion for summary judgment in the case, which was granted in September by a three-judge court that stated that the president’s plan to exclude undocumented Caribbean and other immigrants from the apportionment base was unlawful.
In Monday’s argument, James said that excluding undocumented Caribbean and other immigrants from the apportionment base will lead to the loss of congressional seats and presidential electors in the electoral college, especially for states like New York, as well as degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions.
Additionally, James said excluding immigrants can reduce resources to state and local jurisdictions.
“The US Constitution and Census Act clearly state that, for purposes of apportioning members of the House of Representatives among the states, every person residing in the US on Census Day — April 1 this past year — must be counted,” James argued.
But, in July, she noted that President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base, “the first time such action has been taken in the nation’s history”.
Specifically, James said Article I Section 2 of the US Constitution says representatives shall be apportioned among states according to their respective numbers.
She said the major exception to this rule was the Three-Fifths Compromise, which was instituted to resolve disputes over how and whether slaves would be included in a state’s total count.
James said the compromise counted each slave as only three-fifths of any other person, “specifically limiting the number of representatives and electoral-college votes — and essentially the power — of states with large slave populations”.
In 1868, after the Civil War ended and when slaves were finally free, James said the Fourteenth Amendment was adopted to provide equal protection under the law to all persons, including former slaves, stating that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state…”
James said the framers of the US Constitution “deliberately chose the phrase ‘whole number of persons’ to refer to all persons living in each state, including the entire immigrant population.
“When the framers made this change, they could have chosen to add language that would allow undocumented immigrants to be left out of the apportionment base, but they didn’t,” James said.
Since that time, she said more than 150 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status.
Additionally, the New York Attorney General said the US Congress has reinforced that requirement by providing that the census must tabulate the “total population” by states, and the apportionment should be based on the “whole number of persons” in each state as determined by the census.
Notably, until Trump’s announcement in July, James said even other members of his administration acknowledged that apportionment must be based on all people.
She noted that the person tasked with overseeing the census — Secretary Ross — testified under oath during a congressional committee hearing last year that, “The constitutional mandate, sir, for the census is to try to count every person residing in the US at their place of residence on the dates when the census is conducted.”
James said that he made no mention of an individual’s legal status.
The New York Attorney General James and the coalition specifically argued that the exclusion of undocumented Caribbean and other immigrants from the apportionment base violates Article I Section 2 of the US Constitution, the Fourteenth Amendment and the Census Act.
Additionally, they said that this exclusion conflicts with long-recognised US Supreme Court precedent.