The Idea Of Violating The Constitution — To Exclude Undocumented People From The Census Is… Effectively Dead.

The next census is a little over a decade away now. And it is an absolute certainty that Mr. Biden, in about 30 days, will rescind this disputed memorandum. [Backgrounder, from October — predicting this outcome, here.]

To be clear, I think the media hot takes are wrong — this one is dead. The tiny orange man has no time left to make it happen. I wish six Justices had more courage — to dump his attempt outright (as the Ninth Circuit did), but this was. . . a minimalists’ approach — to achieving the very same end.

This effectively ends the dispute — though the dissent is correct that the full nine justice Supreme Court should have directly said Baby T’s goal here was lawless. They did not. But the net effect here is that all whole persons will be counted — for apportionment in the US House’s districting process. “Winning — ugly“, is how I’d label it (but it is still a win, no doubt):

. . .The count here is complete; the present dispute involves the apportionment process, which remains at a preliminary stage. The Government’s eventual action will reflect both legal and practical constraints, making any prediction about future injury just that — a prediction. Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status. . . . [that is the per curium opinion — i.e., “everyone aggrees“.]

It is worth considering the costs of the Presidential memorandum’s departure from settled law. The modern census emerged from periods of intense political conflict, whereby politicians sought to exploit census procedures to their advantage. See Evans, 536 U. S., at 497 (THOMAS, J., concurring in part and dissenting in part); Montana, 503 U. S., at 451–452, and n. 25. In enacting the 1929 Act, Congress sought to address that problem by using clear and broad language that would cabin discretion and remove opportunities for political gamesmanship. History shows that, all things considered, that approach has served us fairly well. Departing from the text is an open invitation to use discretion to increase an electoral advantage. This produces the hostility that the 1929 Congress sought to resolve. Because I believe plaintiffs’ claims are justiciable, ripe for review, and meritorious, I would affirm the lower court’s holding. . . . [this last paragraph is quoting the dissent.]

The amount of money wasted over the last four years, repeatedly telling Tangerine Mussolini that the Constitution means what it says. . . has to have run into the middle hundreds of millions of dollars. It is. . . deplorable. But onward, grinning just the same. . . we are all but done — with this nightmare.


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