Trump issued a memo in July that apportionment would be done on the basis of citizens only, while total number of persons from the Census count would be used for all other purposes.
While I support Trump’s motivation on principle, I must oppose it on both a Constitutional basis and as a matter of law.
The Constitution calls for an apportionment based on numbers of persons.
There is no legal basis for Trump’s memorandum.
I would support amending the Constitution to require apportionment to be based on citizens only and amending the Constitution would be the only way to achieve that goal in a Constitutional and legal manner.
The memorandum has been challenged in Federal Court and United States District Judge Jesse Furman of the Southern District of New York has ordered an expedited consideration of this case. Most likely, he will convene a three Judge panel to hear this case under the provisions of the Voting Rights Act.
I expect this memorandum to be struck down as unconstitutional very quickly and that would be the only possible correct decision.
The due date for apportionment numbers to Congress is January 3 to January 10, while Trump would still be President, so realistically, this case must be finished prior to January 3, 2021.
Section 2. 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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
And the Constitution is equally as basic.
It says whole number of person.
Not Citizens, not Nationals, persons.
That means we count and use for apportionment persons, which includes Citizens, Nationals, Resident Aliens and illegal resident aliens.
The only persons excluded would be diplomats and transient aliens (whether legal or illegal).
The intention of Trump’s memorandum has nothing to do with non-citizen’s voting and only a handful of nut jobs on the extreme far left are calling for that anyway.
The intention of Trump’s memorandum is to deny extra seats to States on the basis of their population of illegal aliens. And I actually agree with Trump in principle with this. However, I also realize that his memorandum is neither Constitutional nor legally authorized and must fall on court challenge.
There is only ONE Constitutional and legal way to accomplish his goal and that is by Constitutional Amendment.
Section 1. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of United States Citizens, United States Nationals and aliens lawfully admitted to permanent residence in each State.
Section 2. The United States shall not levy any direct tax, to include any capitation tax, wealth tax or tax on the real property of any natural person. Neither any Court of the United States nor any Court of the several States shall entertain any challenge to any tariff, tonnage, indirect tax or excise for failure to apportion said tax according to the Census of the United States.
Section 3. For purposes other than apportionment of Representatives among the several States, the total count of persons of the Census of the United States shall be used, to include United States Citizens, United States Nationals, aliens lawfully admitted to permanent residence and aliens residing unlawfully in the United States. Such count shall exclude any person residing in the United States under the auspices of a diplomatic passport and lawful and unlawful transient aliens.
Section 4. The Congress shall enforce this Article of Amendment by appropriate legislation.