…And It Only Took 40 Years: Judge Rules States Have Standing to Challenge Inclusion of Illegal Aliens for Reapportionment
It onlytook 40 years, but a Federal district judge finally figured out that a stateshould have legal standing to sue the Census Bureau for including illegalaliens in the congressional district reapportionment process.
Judge R.David Proctor looked at the controversy and for the first time had the courageto consider the fact that small states like Alabama are seriously injured byallowing certain large states to attract illegal residents and then pack themin to try to increase political power. California has been doing this for decades.
At first blush this seems a no brainer. Although the Constitution mandates that the Census count the number of “whole persons,” that term has always had a flexible interpretation. “Persons” are, in some contexts, considered corporations, but the Census Bureau has never counted corporations. Similarly, the Census Bureau has excluded persons that are domiciled in foreign countries – that is people who just happen to be here on Census Day but don’t actually live in the U.S. permanently.
Theframers never considered the possibility that persons with no right to be inthe U.S. would demand the level of political representation that would actuallyshift the balance of power in the House of Representatives. And yet it has been going on – and gettingworse – decade after decade. The CensusBureau refuses to change the practice on its own.
Thelitany of challenges began with a case called FAIR v. Klutznick, way back in 1979 – indeed it was the first majorundertaking of the Federation for American Immigration Reform (FAIR) after itsfounding earlier that year. In thatfirst case, in the U.S. District Court for the District of Columbia, the judgeclaimed that citizens could not show vote and power dilution simply because ofthe inclusion of illegal aliens for purposes of reapportionment.
In alater case in which FAIR also assisted, states themselves were also held to bewithout standing to challenge the flagrantly absurd practice of providingpolitical representation to people with no right to be in the country (Ridge v. Verity, 1990). Again a districtjudge punted on the merits of the case by claiming the state could show nolegal interest in the outcome of a practice that could strip the state of oneor more representatives in Congress.
All thisis hard to swallow as we watch the ACLU and related organizations running intoFederal court to file suit after suit challenging the Trump Administration onbehalf of plaintiffs with virtually no attachment to the society – often plaintiffsthat aren’t even in the United States. And yet somehow the “standing doctrine”is never a bar to the courthouse door. Buttry to get a merits hearing on a fundamental issue facing American citizens –if immigration policy is the core of the argument – then standing is sure toloom as an insurmountable obstacle to consideration of your case.
Nearly20 years have passed before another attempt was made: but credit the State ofAlabama and the intrepid Representative Mo Brooks (R-Ala.) with the effort –along with the Immigration Reform Law Institute as a supporting player. In the U.S. District Court for the NorthernDistrict of Alabama, Judge Proctor considered the government’s inevitableMotion to Dismiss for lack of standing and – for once – recognized that theinjury complained of is serious, corrosive of our democracy, and fundamentallyunfair. His decision was issued on June5.
If theCensus Bureau wants to count illegal aliens for other purposes, say for thepurposes of data collection and allocation of federal funds, that is perfectlyfine. But not to allocate the federaldistricts in Congress.
The case is State of Alabama v. Dept. of Commerce, No. 2:18-cv-00772 (N.D. Ala.), and while it is a long way from achieving a final decision on the merits, it is a positive first step in very long path to success. When it comes to immigration policy, persistence is always a winner.