The Supreme Court Has to Choose Between Trump and the Nation’s Founders

It’s hardly a surprise, then, that the Trump administration slowed down a process that would have created even more Democratic voters on the eve of a close election. And there is evidence that this scheme worked. Boundless Immigration, a technology company that helps immigrants naturalize, estimated that the delays in naturalization disenfranchised over 100,000 would-be Americans, a significant number in an election in which dozens of candidates won or lost by razor-thin margins.

Imagine, then, what will happen if presidents going forward could use their broad discretion over immigration status to pick their voters and shift political power in Congress and the Electoral College away from states with high immigrant populations toward those with lower ones. Why would a future administration choose to grant the relief of cancellation of removal, waive deportability grounds, or expand the categories of claims eligible for asylum if doing so will add to the political power of a state known to support the opposing party?

Republicans are, like the president, keenly aware of the partisan advantages to be gained from excluding undocumented immigrants from apportionment. Trump’s memorandum announcing the change in policy cryptically noted that “one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.” That unnamed state is California. If undocumented immigrants are excluded from the count, California is sure to lose at least one of its representatives in Congress.

Such manipulation of apportionment for political gain was exactly what the Constitution’s framers sought to prevent when it required apportioning representation based on the “whole number of persons.” Writing in the Federalist Papers in 1878, James Madison explained that the apportionment clause protected again the “bias” that could lead states “to swell” their numbers to gain political power. These men assumed that the term “persons” would prevent such gamesmanship. The Supreme Court needs to prove them right.

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