In a post several weeks ago, I discussed a fact that I suspect most readers found astonishing: the U.S. Census up to now has been counting illegal aliens as part of the “population” for purposes of determining representation in Congress.

The occasion for the post was that President Trump had just issued a Memorandum directing the Census Bureau to inform him of how many illegal aliens are included in the count for 2020 that is currently ongoing, so that he could attempt to have those persons excluded from the population base used for congressional apportionment. Although you might think that it is intuitively obvious that illegal aliens should not get congressional representation, prior to Trump raising the issue there was a reasonable position that there had not been any definitive court decision one way or the other. So the Census Bureau, naturally, had just gone ahead and counted the illegals.

Needless to say, all the usual suspects — led in this case by New York’s Attorney General Letitia James — immediately brought suit to enjoin everything about the President’s Memorandum, including the President even finding out how many illegal aliens are included in the Census count, and where they might be located.

The case went to a (somewhat unusual) three-judge panel sitting in the Southern District of New York. The panel issued its Opinion and Order on September 10. I had not succeeded in finding a link to the Opinion before today. So I’m somewhat late in getting to this, but I want to be sure that readers are informed about just how kooky our law has become.

You will not be surprised to learn that the court ruled unanimously for the State of New York, and against the President. It enjoined even so much as any effort to find out or to tell the President or the American people how many illegal aliens are being counted or which areas they live in. From page 83 of the Opinion:

[T]he Court enjoins . . . including in the Secretary’s report to the President pursuant to Section 141(b) any “information permitting the President . . . to exercise the President’s discretion to carry out the policy set forth in section 2” of the Presidential Memorandum — that is, any information concerning the number of aliens in each State “who are not in a lawful immigration status under the Immigration and Nationality Act.”

So there! Because this came from one of these unusual three-judge district court panels, the case could theoretically go straight to the Supreme Court. We’ll see if that occurs. But meanwhile, the 2020 Census count is proceeding toward conclusion, and no information will be generated or given to the President as to how many illegal aliens are included.

In my August 5 post, I offered my view that “The case for counting for purposes of apportionment the non-citizens who are not authorized to be in the country is extremely weak. . . .” But then, this case is highly political, with approximately four congressional seats turning on the answer, all of which likely go to Democrats if the illegal aliens are counted, and Republicans if they are not. Control of the House (beginning in 2023) could even turn on the answer. Therefore, weakness of the argument says little about who is likely to win.

The court treats the issue at hand as purely one of statutory construction. The relevant statutes are 13 U.S.C. Section 141 and 2 U.S.C. Section 2a. The first describes the task of the Census as being to provide “tabulation of total population by States.” The second directs the President to transmit to Congress a statement based on the Census results “showing the whole number of persons in each State.” So it’s “total population” in one case, and “whole number of persons” in the other. But as I pointed out in the August 5 post, as simple as those terms may make this seem, even before you get to immigrants there are fairly large categories of people who may be physically located in the United States on Census day who are not counted, as well as equivalently large numbers who are outside the U.S. on Census day who are counted. Examples of the former category include tourists, business travelers, and foreign diplomats. Examples of the latter category also include tourists, business travelers and diplomats, as well as the quite large category of U.S. military and other government employees stationed abroad.

So how do you draw the line between those people who count in the “total population” or “whole number of persons” and those who don’t? The statutory words just don’t give the answer. This court then claims to find the answer in what it calls a “consistent view” of the political branches, since “at least” 1929, that all “residents” should be included in the count:

[S]ince 1929 (if not before), the consistent view of both political branches has been that Section 2a, if not the Constitution, requires the inclusion of all residents in the apportionment base, without regard for their legal status.

(Opinion at 76.). OK, but here are a few issues that the court then just skips over:

• The word “residents” does not appear in either of the pertinent statutes.

• The issue of legal versus illegal aliens barely existed, if at all, in 1929, or indeed until quite recently. The use of “residence” as a criterion may well have made sense when essentially all aliens in the country were here legally. But how can such a mere practice, derived from a time when the current issue had not yet arisen, govern the interpretation of statutes when the underlying facts have changed so dramatically?

• Exactly how can someone claim to be a “resident” of the United States if he or she has no legal right to reside here and is subject to removal at any time? The view of this court appears to be that the subjective intent of the person to stay in defiance of U.S. law is determinative of the issue, while the law itself on obtaining legal residency status, let alone the government’s view of residency status, is somehow irrelevant.

To give you an idea how extreme the court’s logic is, consider this: under this reasoning, the members of an invading occupying army would be entitled to be counted in the census and represented in Congress. After all, they are physically in the country, and they have indicated their intent to remain here and to be “residents.”

Anyway, now you can understand why Democrats are so eager to open up the borders and get a few million more illegal immigrants in. Say, for example, that 10 million or so new illegal immigrants could get through the border and settle in California by the time of the next census. Since each congressional district contains about 750,000 people, that means that California would get about 13 additional seats in the next House. None of the illegals would have to vote to achieve this result. Since California votes almost entirely Democrat as it as, all or nearly all of these seats would go to Democrats, and would be taken away from other states.