Making Census

In oral argument Monday, the Supreme Court on which a majority of justices call themselves textualists or originalists — jurists who purport to prize the Constitution’s original meaning, its amendments and the laws Congress passed — wrestled with a case, New York vs. Trump, in which the president seeks to exclude from the Census count undocumented immigrants for the purpose of congressional apportionment.

He seeks to do so despite the 14th Amendment stating in no uncertain terms, “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.”

Whole number of persons. Not whole number of citizens, or voters, or permanent residents, or people except those whose immigration status is in dispute.

That plain text didn’t stop Trump from issuing a July memo ordering the Census Bureau “to exclude from the apportionment base aliens who are not in a lawful immigration status.” By which he meant not merely people held in immigration detention facilities, but millions his administration determines to be illegal through who knows what statistical acrobatics, an elaborate counting-and-matching process that the government says is ongoing.

Niceties like the Constitution notwithstanding, the Bureau has indicated that it can’t crunch the data fast enough to figure out who to strip in time to get reliable information to Trump before he leaves office. Never mind that: The administration barrels ahead, asking the high court to overturn an injunction New York AG Tish James won in September.

It’s bad enough to give the executive branch wide latitude to fly in the face of history and precedent. It’s far worse to let it do so in a mad rush to beat an arbitrary political deadline, all to thrust a parting dagger in the backs of states like New York.