The possible fallout from the Court’s birthright citizenship opinion.

In a calamitous capper to its most recent term, the Roberts Court blessed birthright citizenship for the hundreds of thousands of children born annually in the U.S. to illegal aliens and “birth tourists.” Would that same Court be willing to abide by the removal of the birthright babies’ parents, along with millions of fellow illegal aliens, from the census figures used to apportion House seats, redistrict, and distribute trillions in federal funds?

Trump v. Barbara begs that question. Given several notable parallels between immigration-related exclusions to birthright citizenship and cases poised to arise concerning immigration-status-related exclusions to the apportionment base, it is fair to examine what a future case may hold based on the Court’s ruling in Barbara.

If the Supreme Court were to take a similar tack, it would prove disastrous for our country. It would legitimize the further twisting of the Constitution and a Reconstruction-era amendment to grant millions of non-citizens representation in our political system—a prospect never contemplated by the 14th Amendment’s drafters. It would distort the American political map, dilute Americans’ voting power, and incentivize still more illegal immigration and sanctuary policies.

Article 1, Section 2, Clause 3 of the Constitution directs that representatives be “apportioned among the several States…according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons…and excluding Indians not taxed, three fifths of all other Persons.” Section 2 of the 14th Amendment did away with the three-fifths compromise, instructing that “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.”

Congress empowered the Commerce Department to conduct the count via a census every ten years and to report the figures to the president, who would then transmit a statement to Congress detailing the population totals in each state and the number of representatives allocated to each state. This is a process that the Trump Administration asserted—and that the Supreme Court has suggested and some scholars have argued—gives the president discretion over the apportionment base, including to modify it to reflect “the whole number of persons in each state” as the president understands it.

As a matter of practice, chief executives have “affirmatively” included illegal aliens in the apportionment base since at least the Carter Administration—which took explicit measures to count this population. The rules and regulations have dictated that the Census Bureau count citizens and non-citizens alike based on their place of “usual residence,” or where they primarily live and sleep.

This has disproportionately increased the Democrats’ political power and has directed largesse toward those states and areas harboring substantial non-citizen populations, namely sanctuary jurisdictions. This corrupting of representation impacts not only the balance of power in Congress, but also presidential elections through the distribution of Electoral College votes. Permitting such foreign influence in the apportionment base is an affront to our republican system.

The first Trump Administration tried but failed to remedy these issues by cross-referencing administrative records with the census to identify and remove the illegal alien population from the apportionment base. But it was stymied by litigation and slowed by COVID-19-related delays. The Biden Administration then revoked that policy and transmitted the illegal alien-inclusive apportionment figures to Congress.

At the conclusion of Biden’s presidency, however, several states filed related suits that challenged, on various grounds, including constitutional ones, the administration’s inclusion of illegal aliens and temporary visa holders in the census and apportionment base. In ongoing litigation, the Trump Administration has suggested that it is devising Census Bureau regulations that may address the states’ concerns. President Trump has said directly that “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.”

Given Congress’s inability even to pass the SAVE Act, if the president is to make good on his word, his administration will almost certainly have to act as it did during his first term. Such efforts to ameliorate the corrosive effect of mass illegal immigration via modifying the census apportionment base will almost assuredly be challenged in the courts.

If Trump v. Barbara is any guide, that could make for an uphill battle.

A Disastrous Precedent

Start with the fact that the majority opinion in Barbara ignored the fundamental relationship between the Constitution and the 14th Amendment. The Constitution was established with the consent of a distinct political community: “We the people of the United States.” It was not established for the benefit of Mexicans, Chinese, Somalis, or any other people.

The 14th Amendment aimed to provide the full protections of our Constitution to former slaves, making citizens and full members of the American political community of those brought to the U.S. under duress, forced into often backbreaking labor, and otherwise subjugated as property. Section 1 of the 14th Amendment, the crux of the birthright case, recognized that the freed slaves had the same rights and protections as all Americans. Section 2 of the amendment, the crux of any apportionment case alongside the Constitution’s Enumeration Clause, not only rectified that clause to reflect the freed slaves’ status as citizens but also created a deterrent for those states that would seek to disenfranchise them.

Yet despite this history, the Court found in Trump v. Barbara that the 14th Amendment applied to the newborn children of those outside our political community who arrived on our shores by the millions, often from hostile nations, without our consent. It seems questionable whether the Court will take a narrower view when it comes to counting illegal alien parents of birthright citizens for apportionment.

Also consider the Roberts Court’s expansive textual analysis of the Citizenship Clause of the 14th Amendment. It interpreted those born “subject to the jurisdiction” of the United States to encompass the children of parents here illegally or temporarily. In so doing, the majority ignored the fact that the clause’s drafters were referring to “full and complete jurisdiction,” in the words of Senator Jacob Howard, who introduced the text. As Justice Thomas noted in his dissent, jurisdiction flows from parents’ domicile, which “meant [a] legal home” where one intends “to permanently remain.”

The Court’s elastic interpretation of “jurisdiction” will likely prove relevant when it comes to its understanding of Section 2 of the 14th Amendment, which requires defining what a “person” is, as in the “whole number of persons in each State.” Historically, again, administrations have counted as “persons” those primarily residing in the U.S., irrespective of their immigration status, while omitting temporary visitors. As I previously reported, plaintiffs challenging the “usual residence” standard, including Missouri, have presented

a compelling case, based on an extensive review of legal precedent and history, that the “whole number of persons” in each state refers to a state’s “inhabitants;” that a state’s inhabitants consist of those “legally domiciled” therein; and that to be so domiciled, a person must have a “lawful intent to permanently remain” in a state, and an ability under the law to do so. Illegal aliens and temporary visa holders therefore may not be counted for purposes of apportionment.

And as detailed in a report at RealClearInvestigations that anticipated the second Trump Administration’s effort to exclude illegal aliens from the apportionment base, I recounted that the first Trump Administration likewise argued in a 2020 memorandum that

the “persons in each State” that the 14th Amendment refers to had long been interpreted to mean “inhabitants.” Inhabitants, it asserted, do not include “every individual physically present within a State’s boundaries at the time of the census,” noting that past administrations had excluded temporary aliens and foreign diplomatic personnel for apportionment.

Is a Supreme Court that dismissed the connection between jurisdiction and domicile going to accept the connection between “persons,” inhabitants, and legal domicile?

Another parallel raises further doubts. In Trump v. Barbara, the Court acknowledged several exceptions to the Citizenship Clause—for example, those born to foreign leaders on U.S. soil. But it claimed that these represented a “closed set.” Similarly, there have been historical exceptions (namely, temporary visitors) regarding who qualifies as a “person” for purposes of the census count and apportionment. Administrations have also used their authority to include or exclude cohorts such as overseas federal personnel from the population counts of their home states. Would the Court rule that these exceptions are a “closed set” too?

The vehicle by which the issue of excluding illegal aliens comes before the Supreme Court would naturally dictate the contours of any ruling. Timing would play a role too, as illustrated by Trump v. New York, in which the Court declined to hear a late first-term challenge to the administration’s ultimately shelved apportionment policy, deeming the case unripe and declining to rule on the merits.

If and when the Court does rule on the merits, it may do so more narrowly than in the birthright citizenship case. It could avoid constitutional issues by focusing on statutory or procedural questions—for example, who may determine whether a population ought to be omitted from the apportionment base and how, rather than whether a president or Congress may exclude an immigrant population from that base.

And it may be that, given the political impact of non-citizens on the apportionment base, the Court will have to deviate from its analysis in Trump v. Barbara to account for the implications for voting rights and the political representation of citizens more broadly. Plaintiffs have challenged the inclusion of illegal aliens and temporary visa holders in the apportionment base on grounds that it violates Americans’ right to equal representation—a powerful argument that distinguishes the apportionment base from the Court’s findings in Barbara.

But it is hard to have faith in the Roberts Court. And that is not only because it rendered such a disastrous opinion in the birthright citizenship case.

In Commerce Department v. New York, a ruling on a directly related matter, Chief Justice Roberts fashioned what Justice Thomas called an “administration-specific standard” that prevented the first Trump Administration from merely reinstating the question “Is this person a citizen of the United States?” on the census. While finding that presidents may pose such a question, the Roberts Court surmised that the administration’s stated rationale for reinstating the query was disingenuous, and therefore rendered the policy legally deficient.

That “unprecedented” ruling—again in Justice Thomas’s words—came amid hysteria from the Left, which claimed that such a question would chill large percentages of people from participating in the census, leading to an alleged unconstitutional undercount. The Left’s anger over the purported “6-to-3 conservative Court,” as well as threats to Justices Brett Kavanaugh and Amy Coney Barrett, has grown exponentially since that time.

Were the Trump Administration to pursue the far more consequential effort to exclude the illegal alien population from the next apportionment base, one could expect Dobbs-level political heat. Successful execution could significantly alter the political map, likely to the detriment of the blue jurisdictions where illegals are concentrated; Republican states with large illegal alien populations such as Texas and Florida would also be affected. Migration flows out of blue states and into red ones, and the redrawing of political maps to remedy racial gerrymanders would further magnify the political implications—to say nothing of state efforts to exclude illegal aliens from the population figures used in redistricting. The cumulative shift in political power could therefore prove seismic.

A Roberts Court that’s acutely sensitive to its political standing may prove no friend in this fight.