The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?

The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted.  One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.”

At issue is the census provision of the Constitution providing that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. Amend. XIV, § 2. That obligation requires the federal government to conduct an “actual Enumeration” every ten years in “such Manner as” directed by Congress. Art. I, § 2, Cl. 3.

Congress enacted legislation that directed the Secretary of Commerce to conduct “a decennial census of population * * * in such form and content as he may determine.” 13 U.S.C. 141(a) (Census Act). Accordingly, by December 31, 2020, the Secretary must submit to the President “[t]he tabulation of total population by States … as required for the apportionment of Representatives in Congress among the several States.” 13 U.S.C. 141(b) (the Secretary’s report or the report). Once he receives that information,  the President must “transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled … by the method known as the method of equal proportions.” That occurs within one week of the first day of the next Congress’s first regular session. 2 U.S.C. 2a(a).

The Trump Administration announced that it would not count those in the country illegally in the census. On July 21, 2020, the President issued a Memorandum to the Secretary of Commerce on the apportionment population base under the 2020 census. 85 Fed. Reg. 44,679 (July 23, 2020). The Memorandum stated that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended, to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” Id. at 44,680.

As I have stated earlier, that narrow interpretation is at odds with long-standing case law.  That point was made by Barrett who told the Solicitor General that “[a] lot of the historical evidence and a longstanding practice really cuts against your position.” This is the same Barrett who Democrats denounced as a robotic ideological shill who was being put on the Court to vote for the Administration on both the ACA case and census case.  Indeed, the absurd conspiracy theory on the ACA case was voiced by various senators in justifying their votes against Barrett.

The justices balked at regulating intrabranch communications between the President and the Department of Commerce, particularly after counsel agreed that the same information could be conveyed in separate envelopes and not violate the underlying injunction in the case:

Roberts: … It seems to me that you’re asking really for a gag order on the Secretary of Commerce concerning his communications to the president. Let’s suppose that the secretary conducts the census and prepares the tabulation exactly as you would have it and puts that in an envelope to send to the president. But also in a separate envelope, puts information on the number of illegal aliens. And he sends both of those envelopes to the president. Is that fine with you?

General Underwood: (48:42) Yes. That does not violate the injunction. There is no gag order to be placed on the Secretary of Commerce. He can be asked for and respond with all sorts of information, but the 141, the particular statements and transmittals that are operative, they aren’t just the transmission of information. They operate as steps in the apportionment. [crosstalk 00:22:09].

That statement was raised repeatedly by justices who questioned the position of the court in regulating how such information is conveyed between the White House and federal agencies.

During the argument, one phrase was repeated by various justices: “illegal alien.”  It is a term that we have previously discussed because of efforts to ban its use despite being a common reference to the status of individuals in statutes, policies, and cases, including the Trump policy at issue in this case.  Justices like Roberts, Thomas, Barrett and Sotomayor all used the term which was used by the Trump Administration. Justice Sotomayor noted for example “if he’s going to tabulate and exclude illegal aliens, we have to decide a matter of law, whether the word, persons, as used in the Statute and Constitution who live here, permits the exclusion of illegal aliens, correct? That’s the legal question.”

As we previously discussed, schools like the University of Maryland has told faculty and student not to use the term as fostering the “dehumanization of an entire group of individuals.”  California has banned the term from government documents as offensive.  Colorado legislators have also denounced its use. The Library of Congress has stopped using the term.  Writers like New York Times’ Lawrence Downes declared “illegal” is “a code word for racial and ethnic hatred.”

The Supreme Court was heralded in a prior decision for avoiding the term except when quoting directly from an underlying statute or policy.

The justices used the term generally and not just to quote from the Administration’s policy in yesterday’s argument. They also used “undocumented” as a term.  While the policy refers to those “not in a lawful immigration status,” the briefs use the common term “illegal alien.”

I have previously stated that the use of the term is not inherently racist but rather a common statutory and legal reference to the legal status of individuals. That does not mean that we should not recognize how it is received by many in our country. I tend to use “undocumented” for that reason. However, this is a choice upon which people of good-faith can disagree. I do not assume that its use is driven by racism in the Court or own our campuses.

82 thoughts on “The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?”

  1. The 14th amendment pretty clearly states that if you are not allowed to vote, you can not be counted for the purposes of dividing congressional districts.

    Why is this even debatable ?

  2. The Census Act says “persons” should be counted, not citizens. It’s really a simple question. Are undocumented or illegals, whatever way you want to describe them, persons? Even though Trump has called south of the border migrants “rapists, murderers, criminals and animals”, they are still “persons”. Where are all the strict legal constructionists on this? Oh, that’s right–they only want logical or strict construction of the words of laws and the Constitutions to apply when it furthers their goals.

  3. This case demonstrates with crystal clarity that Demonkraps desire to increase the magnitude of illegal aliens, and their primary (if not sole) purpose in doing that is to increase political power.

  4. The INA calls them aliens, which is what they are.

    Yes, “persons” should be counted, but then why not make a distinction between citizens and aliens, particularly illegal aliens, for purposes of apportionment.

    1. Because the Constitution says to count “persons” (not citizens) for purposes of apportionment.

      1. Are criminals and invading troops persons?

        Do you suppose the Constitution equates criminals and persons?

        Were the country under military invasion, would enemy troops, present in the country, be also counted for purposes of apportionment?

        Illegal aliens are criminals who have violated immigration laws and invading military forces are, presumably, undesirables, although, I could be wrong on that.

  5. Presumably the Justices of the Supreme Court agree with Turley and do not believe their use of the term “illegal alien” constitutes hate speech, institutional racism or microaggression.

    Does a US university student have the right to use the term “illegal alien” in academic work and a corresponding right to sue for defamation if she is negatively graded by her professors as a dehumanizing racist for using this terminology?

  6. In certain states, judges have officiously declared that if a lawyer uses the term “illegal alien” they can be penalized with “ethics violations”

    under RPC 8.4

    my predecessor, Mr Kurtz, he dead, invited Turley to comment on that issue as part of his “free speech” theme, but he never did.

    I have abandoned worrying about free speech. When we take over, we will have our own lists of terms that are not allowed.

    Billionaires are the enemy. They are the ones who love the illegal aliens. They are cheap labor and make the rich, richer.

    The workers and middle class suffer from illegal immigration. But we are not even allowed to name them. So how “free” is our speech, really, if we are politically weak?

    Perhaps the very notion of “freedom” as it was framed in the Enlightenment, is illusory. Certainly it is overused.

    Power is what gives choices. Power comes from many things. Money can give power but so can a strong state, backed by political organization on behalf of the workers and middle class. That sort of power, can give us a freedom which we presently do not enjoy.

    Saloth Sar.

  7. You are a farmer. You bring on help for the harvest and you allow him to stay in the bunk house and you provide food. A few days go by and you discover that your help has invited two friends to stay in your bunk house. You are expected to feed these new residents. You contact the sheriff and the court finds that they are on your property illegally. Simple

  8. “I have previously stated that the use of the term is not inherently racist but rather a common statutory and legal reference to the legal status of individuals. That does not mean that we should not recognize how it is received by many in our country. I tend to use “undocumented” for that reason. However, this is a choice upon which people of good-faith can disagree. I do not assume that its use is driven by racism in the Court or own our campuses.”

    I can think of many commonly used statutory and legal references, some still on the books that are also racist. I’m not so sure that by saying it’s a good-faith disagreement when one knows how it is often received isn’t being driven by racism? Why else continue using it?

    1. Quite simply it defines a type of activity. Why call it anything other than what it is in actuality? Calling it racist is a tactic to try and end the discussion. “Illegal Aliens” or “Illegal Immigrants” apply to all that enter the United States without legal status including all races and religions. It is trying to put a sympathetic face on an otherwise unwanted activity by presenting a thin veneer of legitimacy. I do not personally like the term “undocumented” because it softens the blow of illegal activity. It is well understood that changing the terms can matter a great deal.

      1. All of the Founders were immigrants, only legal because they said so. Who is “illegal” has since been determined by many factors including country of origin which often comes down to race. The term is almost never applied to Europeans when used by politicians, the media, and much of the public. It is often a substitute for people of color and hardly used in any other manner.

        1. You really need to learn your history. Only nine of the Founding Fathers were immigrants. The rest were American born.

          As far as calling Europeans illegal, if they come here without status or overstay their visa, they are illegal.

          As for who the term is not being applied, the very same people that come legally from the very same countries as the illegal.

          1. And I was wrong in saying all the Founders were immigrants. I should have said none of them were born Americans, a nation that didn’t exist until 1776. Some became Americans which is just what those you call illegal would hope to do.

            1. “Some became Americans which is just what those you call illegal would hope to do.”

              President Obama also used the term illegal:

              “We have to deal with the 11 million individuals who are here illegally. We all agree that these men and women should have to earn their way to citizenship. But for comprehensive immigration reform to work, it must be clear from the outset that there is a pathway to citizenship. We’ve got to lay out a path — a process that includes passing a background check, paying taxes, paying a penalty, learning English, and then going to the back of the line, behind all the folks who are trying to come here legally. That’s only fair.”

              President Barack Obama, January 29, 2013


              1. I could get technical and say he didn’t use the term “illegal aliens” in that speech but it’s possible he did on a different occasion and if he did now knows better. I’d bet millions he never referred to immigrants from specific countries as rapists and murderers (with some good people). Trump sees good people among skinheads and neo-Nazi’s, how generous he is.

                1. Regardless of who is President, should the US have an immigration system with a line, and should it privilege the legal immigrants who follow the rules of the line, while penalizing the illegal immigrants who break the rules of the line, as President Obama explained?

                2. Neither did Trump. He was talking about MS13, if you listened to his whole sentence…and not what the Lying propagandists in the media reported.

        2. Hi Enigma, good to hear from you. If you read recent DHS Annual Reports on Entry and Exits, you’ll see country-by-country breakdown of who is overstaying visas. Europeans make up some of the biggest numbers, along with Canadians, Brazilians, Mexicans and Asian Indians. When you look at these reports, it’s a cross section of global demographics. I use the term “illegal alien” for all visa overstays. “Undocumented” is simply deceitful language, because the temporary visa they were issued documents each individual and the fact of their overstay. I don’t see race having anything to do with visa overstays.

          1. “I don’t see race having anything to do with visa overstays.” Yet it seems to be a huge factor in who ends up in cages. Also, Stephen Miller would introduce a highly problematic likelihood of success factor including the ability to speak English on arrival which would ultimately make immigration a much whiter process.

            1. When I was a kid there was a specific ethnic group which were called “WOPS”. That referred to “with out papers” which meant not legal immigrants. It was sort of demeaning but a lot of those people sort of lived with it.
              These people were good workers and raised their kids well.
              One portion of the country they came from had folks who got the name more. The portion was an island.

              Can someone on the blog here guess the name of the place. It begins with the letter S. Not W.

        3. “The term is almost never applied to Europeans”

          That’s a lie.

          How do you feel about “Rughead”, as a “microaggression” ?

          That’s a term I had never heard until I heard it from an illegal alien from Mexico.

          Your vastly overblown sense of self-importance is your worst enemy, enigma.

          You’re always looking for any reason to feel offended.

              1. Rhodes the Russian troll: reflecting you back with your own words is the best way to show the childishness of your words.

                You are about as creative as an earthworm.

            1. Heard it while speaking with a Mexican worker at a construction site who was here illegally. He was referring to another construction worker who was a black American who had been accused of not pulling his weight.

              So, I wasn’t “hanging out”, I was there meeting with a Municipal Code Inspector trying to get a CO issued on time.

              Prejudice comes in many forms. Everyone has prejudices of some sort. That includes plenty of black people I have known.

              1. I don’t disagree with you that anyone can be prejudiced, wielding systemic racism requires a power limited in almost all circumstances in America to one race. Claimimng it doesn’t exist is the primary defense of the same race. They also claim there is no voter suppression, and income disparity is the fault of those on the lower end.

  9. How ironic that you, JT, would prefer the term “undocumented”. As came out in the questions pertaining to which subset of “blank” the Commerce Dept. had the wherewithal to deduct, state-by-state, from the headcount, visa overstays would dwarf all the others. Why?…because the government has a database of those who received temporary visas. That’s a modern equivalent to “documented”.

  10. I don’t get it – “illegal,”: i.e., not legal, “alien,” meaning, foreigner, not one of us; “Illegal alien,” as opposed to “naturalized alien,” the phrase itself [illegal alien] common to the vernacular for well over a hundred years. Love, hate, race or bait – just meaningless, irrelevant to definition. These are foreign invaders; they are “oultaws,” outlaw simply another way of saying, “illegal”. And “undocumented” doesn’t cut it. Because many illegals DO have documents, meaning, those countervailing “documented” have not undergone a legal entry process either.

    You know, the concept of American citizenship dates to at least Massachusetts Bay. Colonial immigrants having first received English permission to disembark would be, or might be, granted temporary residency in towns (as corporate entity) here. It was a six month trial period followed by an oath of fidelity. As such, in essence, these colonial immigrants were granted “citizenship.” The point is, citizenship a formal, mutual, two-party agreement. It’s not “I am here, therefore I am.” Not unless one has sufficient military might to ensure success.

    This of course is setting aside the issue at hand of “person,” which is precisely what Turley has wisely done. . ,

  11. its my understanding that when the constitution was written there were no federal immigration laws and every PERSON living her WAS a citizen. but when put federal immigration laws into place [late 1870s?] then it would seem PERSONS and CITIZENS were no longer synonymous….

      1. Not by law, it wasn’t. Go back and look at Census tables from the 1820s and 1830s…..look in the columns “Country of Birth” and “Citizenship”. What you’ll find there will undermine your claim….you’ll find US citizens born in Morocco, Dohamy, Siam, India. Heck, we even took Britons!

        1. Here’s the law for 1790 –

          Here’s the law for 1795 –

          “any alien, being a free white person” may become a citizen.

          If you want me to look at something, link to it. Then think about why you’re confusing race and nationality. Do you think no white people were born in Morocco in the 1800s?

          1. I’m looking at the 1820 Census

            In the category of “Free Non-Whites”, the total population is 227K. The number of “Foreigners not naturalized” is 31K.
            If the law you cite were being rigidly enforced, how do you get almost 10X as many US Citizens who are “Free Non-Whites” compared to “Foreigners not naturalized”? Especially since US population doubled between 1800 and 1820!

            The pattern I’m seeing is that, regardless of what the federal law said, it wasn’t being enforced (remind you of anything?)

            That said, you are right about what was on the lawbook.

            1. My claim was about when the country was founded. 1820 is decades later. Laws change. Additional naturalization acts were passed, replacing the earlier ones. If you want to know what the current law was in 1820, you’ll have to look it up.

              “At first, blacks were counted only as slaves, but in 1820 a “free colored persons” category was added, encompassing about 13% of blacks.”

              Your document doesn’t allow a text search, and I don’t see where they list country of origin.

    1. I would say that citizenship as lawful immigration and residency prior to the first federal immigration act was a local matter. It’s not that concepts of citizenship did not exist, only that there was no formal federal or national process. Likewise many of these states, and actually the individual towns within states, prior to the Civil War, viewed themselves as largely autonomous. We know that because when Lincoln called for troops many held town meetings to approve or disapprove, to vote the measure up or down; many passing by majority vote a town resolution, as in, “be it resolved,” with their reasons for doing so outlined and listed.

    2. Marbiol

      “…its my understanding that when the constitution was written there were no federal immigration laws and every PERSON living her WAS a citizen.”

      The Constitution was adopted in 1789. In four iterations, the Founders deliberately restricted immigration to “…free white person(s)…” as it generally restricted the vote to: Male, European, 21, 50 lbs. Sterling/50 acres. The only developments modifying those criteria, which clearly established white America, were an unconstitutional “Reign of Terror” illegally perpetrated by Abraham Lincoln, culminating in the improper ratification of the illegitimate and unconstitutional “Reconstruction Amendments.” Most would agree that the amendment process does not include declaring martial law, the unconstitutional suspension of Habeas Corpus, the seizing of power, the neutralization of the legislative and judicial branches, the prosecution of an unconstitutional war of aggression against a sovereign foreign nation, the confiscation of private property, mass illegal immigration (freed black slaves must have been deported in 1863), “fixing” the 1864 election and the imposition of “injurious” and nullifying amendments under the duress of brutal, post-war military occupation.

      Have a look at the citizens depicted at the top of this blog page to obtain an idea of America and its citizens. Japan is Japanese. China is Chinese. Saudi Arabia is Saudi Arabian. America is American.
      The Israelites were out of Egypt before the ink was dry on their release papers. Homogeneity; It’s really quite simple.

      NATURALIZATION ACTS OF 1790, 1795, 1798 AND 1802

      United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

      Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof

  12. Right Wing! Left Wing!
    All around the town!
    I’ll be talking to middies…
    If and when I’m around!

  13. The banning of words and phrases that the Left doesn’t like is just one more attempt to control speech that they’ve been using for many years. These same people don’t hesitate to use Nazi, white supremacist, racist, whatever-phobe, that are far more inaccurate and offensive to almost everyone to whom they apply them.

  14. One is either in this country legally or not. If not, they are illegal. It’s that simple, but obviously much too complicated for those who refuse to use the term; proving once again they are morons.

    1. Arthur, do you live near any Hispanics? Or are you in largely White community buffered from the larger world?

  15. I have previously stated that the use of the term is not inherently racist but rather a common statutory and legal reference to the legal status of individuals.

    JT, are you even the least bit embarrassed for abandoning a perfectly acceptable legal term in favor of what the mob demands? For all your concern about the loss of free speech, your decision to restrict your own voluntarily defies reason.

    1. Olly, judges via their “ethics” enforcers who whip the lawyer slaves into shape, decided “illegal immigrants” was a racist term many years ago. Turley is aware of that. He’s a law professor so he has to “respect” what these elders say in their protocols. billionaires approve!

      Saloth Sar

      1. He’s a law professor so he has to “respect” what these elders say in their protocols.

        Not if he wants to be taken seriously as a defender of the 1st amendment.

  16. Turley- “I tend to use “undocumented.”
    Except that many illegal aliens have lots of documents; just not theirs.

    1. a very salient point. One that the right should employ more often when confronted with the always frenzied left.

      1. “the left” are whipped into a constant frenzy by mass media, social media, universities, and countless “charities” which are controlled by billionaires

        the great irony of today’s “left” which is really nothing more than a motley crue of bizarre narrow interests like the LGBT crowd, but today’s left is nothing like the older “left” which was Marxist, in analysis and not in name only, and thus had the tools to understand the massive power billionaires wield over society and politics. The older “left” understood they were a problem.

        And the older “left” had the solution to it too. Use every tool of politics and state power to crush the enemy.
        That lesson the “new left” has not forgotten and they are doing it against us, the people, the workers and middle classes.
        The new left is shameless in their obedience to the whims of the billionaires.

        Today’s “right” if it ever wants to gain real power, will boldly name the billionaires as the enemy. Without this, the people will never succeed.

        Saloth Sar

      2. In 2009 Democrats controlled the house, the senate and the presidency. They were free to redefine what constituted legally residing in the US. They failed to do so. Instead while pushing for changes to immigration law, Pres. Obama deported more “illegal aliens” than Trump did. Further Obama sought them not at the border – but raided businesses and other places where they were productively engaged.

        Democrats are incredible hypocrits. They are Two faced. And immigration is one of the more obvious issues. They wish to be champions of the working class – protecting them from competition with those being paid lower wages – at home and abroad, while at the same time championing limitless immigration.

        You can not ethically and morally have it both ways. Pretty much no matter what you beleive – ONE of those positions is WRONG.

        If open borders is the morally correct position – then trying to protect US workers from competition – foreign or domestic is WRONG.
        If the latter is morally correct then the former is wrong.

        Republicans may or may not be morally and ethically correct.
        But atleast they are consistent.

    2. they can get drivers licenses in NY and CA and even law licenses in some states. figure that one out

      oh wait I’ll say why.– billionaires like it that way. keeps us natives off balance so we don’t gang up on them

      which is exactly what we should do. gang up on them,. arrest them, expropriate their billions, and reeducate them
      restore sovereignty to the people and strengthen the state. THAT would MAGA

      Saloth Sar

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