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With No Final Say, Trump Wants To Change Who Counts For Dividing Up Congress' Seats:
President Trump released a memorandum Tuesday that calls for an unprecedented change to the constitutionally mandated count of every person living in the country — the exclusion of unauthorized immigrants from the numbers used to divide up seats in Congress among the states.
The memo instructs Commerce Secretary Wilbur Ross, who oversees the Commerce Department, to include in the legally required report of census results to the president "information permitting the President, to the extent practicable" to leave out the number of immigrants living in the U.S. without authorization from the apportionment count.
But the move by the president, who does not have final authority over the census, is more likely to spur legal challenges and political spectacle in the last months before this year's presidential election than a transformation of the once-a-decade head count, which has been disrupted by the coronavirus pandemic.
[...] Since the first U.S. census in 1790, both U.S. citizens and noncitizens — regardless of immigration status — have been included in the country's official population counts.
The fifth sentence of the Constitution specifies that "persons" residing in the states should be counted every 10 years to determine each state's share of seats in the House of Representatives. The 14th Amendment, which ended the counting of an enslaved person as "three fifths" of a free person, goes further to require the counting of the "whole number of persons in each state."
It is Congress — not the president — that Article 1, Section 2 of the country's founding document empowers to carry out the "actual enumeration" of the country's population in "such manner as they shall by law direct."
In Title 2 of the U.S. Code, Congress detailed its instructions for the president to report to lawmakers the tally of the "whole number of persons" living in each state for the reapportionment of House seats. In Title 13, Congress established additional key dates for the "tabulation of total population."
(Score: 1, Interesting) by Anonymous Coward on Saturday July 25 2020, @06:59AM
Is the actual text of the census requirement. What that has been interpreted to mean the entire time was that there are three categories of persons, free individuals, self-sovereign Indians, and slaves. Slaves were 3/5th of a person. Indians that opted out of taxation on their sovereign land don't count at all. Everyone else who is considered "domiciled" in a state is counted as they are "free persons," regardless of legal status, citizenship, or ability to vote.
Now this modified the original rule. It now mentions only two of the previous categories. The self-sovereign Indians that opted out of taxation and "persons" taking the place of "free persons." Similarly to the previous rule, they interpreted that to mean all persons domiciled in that state, regardless of legal status, citizenship, or ability to vote.
One out defenders of changing the rule argue, despite its 100+ year history and original understanding, is that the last section dealing with disenfranchisement modifies the rule since it only mentions "male inhabitants" "21 years of age" and "citizens." The problem with that is it flies in the face of the original understand and how it was applied. Despite only mentioning men in the second part, they have been counting everyone and using it for apportionment, rather than just using men of the right kind. Instead, what they would do is count everyone and then apply the whole disqualification to the group. Say 100,000 women and children, 1 white man, and 1 disenfranchised black man (that isn't a "rebel" or "criminal") lived in a state. The understanding is that their population for apportionment purposes would be 50,001 in order to reflect that half the voting population couldn't vote, in order to disincentivize the southern states from disenfranchising former slaves. So both the text, original understanding, and the 230+ year and 150+ year history for Article One and the 14th Amendment, respectively, as they were actually used clearly shows that a "person" in the state includes all persons in the state that weren't specifically excluded in the text, i.e. untaxed Indians.