Week 48: Judges stop attempt to exclude undocumented immigrants from apportionment count
Immigration news, in context.
This is the forty-eighth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we examine the ruling on and background of the Trump administration’s attempt to have undocumented immigrants excluded from apportionment.
In Under the Radar, we look at a whistleblower complaint about a politicized culture at DHS and the changing use of technology in immigration courts.
In Next Destination, we discuss a recent ruling on diversity visas, which haven’t been getting processed since an April presidential proclamation.
The Big Picture
The news: A judicial panel has granted summary judgement finding that the administration’s efforts to exclude immigrants without legal status from the decennial census count for apportionment purposes are unlawful. The administration is now enjoined from taking steps to implement the president’s memorandum to this effect.
What’s happening?
If you’re a regular reader of BORDER/LINES, at this point you probably know that the Trump administration often implements immigration-related policies with the understanding that it will get sued, and there’s a good likelihood that it’ll lose. Its regulatory efforts are often sloppy and rolled out haphazardly, with the underlying assumption being that they’ll advance some priorities and do some damage before they get struck down.
Even among this dubious company, the presidential memorandum directing the federal bureaucracy to take steps to prepare a census count devoid of undocumented immigrants for use in Congressional reapportionment was fantastically illegal. Just three days after it was issued on July 21, the administration was sued by both a collection of states and localities and a coalition of non-governmental organizations, cases which were consolidated before U.S. District Judge Jesse Furman, of the Southern District of New York.
The plaintiffs were making an argument purely centered on the legality of the memorandum and the harms it was causing, so the case was put on an expedited timeline without further discovery. Though district court decisions are typically issued by a single judge, 28 U.S.C § 2284(a) provides for a district court of three judges to be established when an action generally involves constitutional challenges to apportionment questions. At Furman’s request, a panel consisting of himself and Second Circuit Judges Peter Hall and Richard Wesley was established, and ultimately it collectively issued the decision declaring the administration’s move to be illegal.
In seeking a summary judgement or at least a preliminary injunction, plaintiffs argued that the memorandum’s directives ran clearly counter to the plain language of both the Constitution's Fourteenth Amendment and the census statutory framework as laid out in 13 U.S.C § 141 and 2 U.S.C § 2a. The administration had cited both statutes in the memorandum, apparently confusing (or willfully misinterpreting) the president’s authority and responsibility to provide Congress with a complete count for apportionment purposes as an authority to decide what the count would entail. The former references a “tabulation of total population by States,” for Congressional apportionment, the latter a “statement showing the whole number of persons in each State.”
The Constitution itself also notes that apportionment should include the “whole number of persons in each state,” though the court didn’t even feel the need to address the constitutional question given that the memorandum already ran so plainly counter to the laws as written by Congress. The memorandum includes the comical argument that the “President, by law, makes the final determination regarding the ‘whole number of persons in each State,’” given that the count requirement “has never been understood to include in the apportionment base every individual physically present within a State's boundaries at the time of the census,” which is wholly false.
In fact, Congress explicitly noted almost a hundred years ago that the raw data from the census count must be utilized for apportionment, and the count doesn’t include any data on legal status (nor on citizenship, as an effort to add that question was also struck down. More on that below). Instead, the president was directing the Secretary of Commerce to develop some sort of alternate process to estimate the counts of undocumented immigrants, and then provide both the complete numbers and the modified numbers, the latter of which would then be forwarded to Congress for the apportionment.
It didn’t help that the administration was so explicit about its objective of decreasing the political power of states with large undocumented populations. Section 2 of the memorandum goes out of its way to single out California (which is not explicitly named but is obviously being referenced), stating that “one State is home to more than 2.2 million illegal aliens” and including them in the count “could result in the allocation of two or three more congressional seats than would otherwise be allocated.”
In court, the administration’s lawyers argued among other things that the president had the authority to enact the changes, and that there was no standing to sue anyway, because the estimates hadn’t actually been created yet and the plaintiffs could point to no remediable harm. In response, the plaintiffs argued that the memorandum was already doing harm by decreasing confidence in the census, which affected the ongoing count, and forcing them to redirect resources. The judges agreed.
How we got here
Excluding undocumented immigrants from the decennial census has been a pet project of the Trump administration.
In 2018, the U.S. Census Bureau said it’d be adding a question about U.S. citizenship to the 2020 census, resulting in a near-immediate lawsuit. There were concerns that the Trump administration would use census information for immigration enforcement purposes, or that even if it didn’t, that the question would preclude undocumented immigrants from responding to the census because of fear of deportation. A low response rate would affect everything from congressional apportionment to the amount of funding set aside for roads, schools, and other public goods and services.
The administration initially claimed that the question was an innocuous one, and that it was just a simple data collection effort. (For what it’s worth, other federal surveys already ask respondents whether they are U.S. citizens.) The Department of Justice, headed at the time by former attorney general Jeff Sessions, said it asked the Commerce Department (which oversees the Census Bureau) to add the citizenship question to the census to help it better enforce the Voting Rights Act. The argument was effectively that without citizenship data, it wouldn’t be able to tell where voters of color live—even though, again, there are other ways for it to get that data.
That justification was, to put it frankly, laughable. While the lawsuits against the citizenship question were ongoing, documents found on the hard drive of Thomas Hofeller, a deceased Republican operative, revealed the real reason for its addition to the census: to empower Republicans. One study found that drawing congressional districts based on the citizen population instead of the total population would benefit “Republicans and Non-Hispanic Whites,” while being a “disadvantage for the Democrats.” It was later revealed that Hofeller was also involved in drafting the DOJ memo asking the Commerce Department to add the question to the census in the first place.
The census case made its way up to the Supreme Court, which eventually ruled that the Voting Rights Act rationale was “pretextual.” As was the case with the DACA litigation, the court didn’t rule that the administration couldn’t add a citizenship question to the census, but that it needed to do so with better reasoning. The census ended up being printed without the citizenship question, prompting the administration to find new ways to do what it actually wanted to accomplish all along: excluding undocumented immigrants from apportionment.
This summer, the administration also decided to speed up the census process by cutting off outreach efforts after September 30. This move led to yet another lawsuit from a coalition of civil rights groups, which claimed that doing so “disregards the Bureau's own prior conclusions that such rushed processing renders it impossible to fulfill its constitutional obligation to ensure reasonable quality and accuracy of 2020 Census data.”
Of course, there’s a long history of creatively counting—or excluding—people from congressional apportionment. The Constitution says that “Indians not taxed” should be excluded from the population for apportionment purposes, and the Three-Fifths compromise determined that three-fifths of the total enslaved population of each state should count towards the same purpose, a concession made for slave-holders in the South. After the passage of the Fourteenth Amendment in the wake of the Civil War, apportionment was based on “the whole number of persons in each state, excluding Indians not taxed.”
The census has also been used for other exclusionary purposes, including reducing immigration. At the turn of the twentieth century, immigration restrictionists concocted a plan to limit the number of immigrants from Southern and Eastern Europe who could migrate to the United States. (Most Asian immigrants were excluded at the time, and restrictionists hadn’t yet begun to regard migration from Latin America as a problem.) The result was the Immigration Act of 1924, also known as the Johnson-Reed act, which created per-country quotas for immigration. Each country’s cap was based on the total number of immigrants from that country who lived in the U.S. in 1890, as per the census.
What’s next?
In this case, the administration would have a more difficult time reversing the decision because it’s not merely a preliminary injunction. The judicial panel granted summary judgement, enjoined federal agencies from complying with the memorandum, and declared the memorandum itself to be unlawful. The administration can still appeal it up to the circuit level, of course, but it’s not as simple as getting an injunction reversed. The government would have to plead their case again on the merits and try to get the court to overturn the prior decision, and it really is an extraordinarily weak case. In all likelihood, this is the end of this effort.
However, that doesn’t mean some damage hasn’t been done. It’s hard to isolate the effect of any particular proposal, but the combined impact of this memo and the effort to add the citizenship question—even though they both failed—as well as nominally unrelated policies like the public charge rule and ICE raids has been irreparable damage to the census count, which we will be forced to rely on for the next ten years. This will not only affect apportionment, but policy decisions at every level of government and the private sector, not to mention that allocation of well over a trillion dollars in public funds.
The legal wrangling around the continuing census count isn’t even over yet, as a federal judge recently blocked the administration’s attempt to wind down its enumeration earlier than planned. The rationale was apparently in part to have the results delivered to the White House by the end of this year, which would allow Trump to control what ultimately gets delivered to Congress and used. The effort signals that, notwithstanding this ruling on the count of undocumented immigrants, the president wants to oversee and potentially influence the way the final totals are calculated.
Under the Radar
Whistleblower complaint shows Trump administration knew about dangers faced by asylum seekers from Central America
Former DHS intelligence analyst Brian Murphy published a complaint accusing administration officials of a host of offenses, including interfering with the investigation into Russia’s role in the 2016 presidential election, overstating the threat of “ANTIFA and ‘anarchist groups,’ and altering intelligence reports about country conditions in Central America to make it harder for migrants to obtain asylum.
As the New Yorker’s Jonathan Blitzer noted, the complaint shows how much the Trump administration’s immigration enforcement priorities have influenced seemingly apolitical aspects of the Department of Homeland Security.
In one instance, DHS officials, including Ken Cuccinelli (who, last we checked, is currently the “senior official performing the duties of the deputy secretary”) “expressed frustration” with intelligence reports focused on Central America, claiming they had been compiled by “deep state intelligence analysts” with the intention of undermining the administration’s asylum policies. These reports should have also precluded the administration from implementing its “asylum cooperative agreements” with Guatemala, Honduras, and El Salvador, given that they found that conditions in all three countries were unstable enough to drive migrants out.
Blitzer also points out that asylum decisions have never been apolitical. During the Cold War, the U.S. denied asylum to migrants from El Salvador and Guatemala, because granting migrants from those countries political asylum would have amounted to admitting that their governments—which were actively being supported by the U.S.—were persecuting their own people. The result then, as it is now, was that politics took precedence over human lives.
A glimpse into the use of video deportation hearings
A new feature published in The Verge by our Gaby Del Valle looks at the rise of video teleconferencing (VTC) in immigration court proceedings. VTC has been around for decades and was first used in Kentucky to conduct remote immigration hearings for immigrants in criminal detention. Over the years, its use has increased even though attorneys and immigration advocates say remote hearings create a host of due process issues for immigrants in deportation proceedings, including limiting their ability to find counsel at all.
Under the Trump administration, the use of VTC has expanded further, in lockstep with the expansion of ICE’s detention network, particularly in rural communities far from immigration courts. Using video technology, the Executive Office for Immigration Review, the agency within the Department of Justice that oversees immigration courts, can have judges in California, New York, and other parts of the country preside over the cases of immigrants detained in places like Mississippi and Louisiana.
The use of VTC has also been integral to EOIR’s “Strategic Caseload Reduction Plan,” an attempt to reduce the backlog of immigration cases. (Of course, these efforts are hampered by the administration’s insistence on re-opening cases that have been administratively closed, but that’s another issue altogether.) Under that plan, EOIR opened two two “Immigration Adjudication Centers” (IACs), where judges sit in closets and hear the cases of immigrants detained across the country.
Expediting the deportation process is just part of the purpose of VTC; the technology also works to hinder transparency into the process. IACs aren’t open to the public, and although deportation hearings held in ICE detention facilities technically are, accessing them can also be a logistical nightmare.
Next Destination
Judge orders administration to resume processing diversity visas
Diversity visas, as immigrant visas, were banned as part of the broader presidential proclamation issued in April, which blocked practically the majority of applicants from receiving immigrant visas abroad (with some exceptions). The program works as a lottery, where applicants from countries determined to have relatively low levels of immigration to the United States enter themselves for the chance to randomly win one of 55,000 annual diversity visas, which allow them to immigrate to the country and become permanent residents upon arrival.
The lottery runs on a fiscal year timeline, meaning that it resets on October 1 every year. A consequence of that is that people who have won the lottery but not received the visa itself by that point lose out on their chance to do so. When the visa ban was enacted in April, there were still about 43,000 winners without visas abroad, and they’ve been forced to watch the days count down towards the loss of their ability to actually immigrate.
This week, Federal District Judge Amit Mehta ruled that the government could not “effectively extinguish the diversity program for a given year by simply sitting on its hands and letting all pending diversity visa applications time out,” and ordered the government to take steps to begin processing the visas again. It’s not clear yet how the process is going to work, particularly as some consulates still have limited on-site operations, but it at least opens the door for relief for these applicants.