Counting the heads that count

Today, Tuesday 4/23/2019, could change the face of politics in the United States - and no, that's not an exaggeration.

Today, arguments take place in front of the SCOTUS to determine whether the Census - specifically, the short form - should contain a question with earthshaking importance:

"Are you a US citizen?"

The current Constitutional guidance is as follows:

The Legislative branch passes laws and the Executive branch executes them.  

Unless the law is extremely explicit about how it is to be executed (most of the time, the law's enforcement mechanism is "the Secretary shall determine"), the Executive enforces the law using its own judgment.  If Congress is dissatisfied with how the Executive enforces a law, the remedy is for Congress to rewrite the offending sections of that law.  Or, to wait for a different Chief Executive to be elected who will appoint a different Secretary who will then change the rules accordingly.

Today's legal arguments at the SCOTUS aren't over the citizenship question per se, but over the "tactics" used by Wilber Ross (SecCommerce) to insert the question into the Census' "short form" - and whether the question should even appear on the "short form".  Did Ross "lie" about his reasons for wanting the question on the short form?  Does it matter whether he lied if, as he claims, he has legal authority to design the Census form?  If the decision does not violate Constitutional principles (it doesn't) and does not violate existing law (it doesn't), why is it wrong?

The heart of any law is its intent.  What is the intent of the Census?  Is it to just to count the full number of people in the US?  If the Census is used to determine apportionment of seats in the House, then shouldn't the census reflect the number of eligible voters in a district - and not just the number of residents?  After all, isn't it the America citizens who elect their representatives - or are we going to allow non-citizens to vote too?

What was Ross's intent?  Was it, as some claim, racist to not count non-citizens in the Census?  If some people of a specific race are American citizens and are counted, and some people of the same race are not American citizens and are not counted, where is the racism?  The Census is published in multiple languages specifically to encourage participation, even by American citizens who cannot speak English.  The goal is to be as inclusive as possible - but for American citizens, not foreign nationals (if you're not an American citizen, you are a foreign national by definition).

Let's look at the law, shall we? The regulations regarding the Census are found in 13 U.S. Code.  Subchapter 1 Section 4 makes it clear that the "Secretary ... may issue such rules and regulations as he deems necessary to carry out such functions and duties..."  And Section 5 reads, in its entirety, "The Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title."

Hence, the content of the Census - including the determination of the questions themselves - is a plenary power of the Secretary of Commerce.  Unless Ross directly violates the law, his decision is legal, enforceable, and inarguable. 

Now let's examine a possible scenario that is directly affected by the results of the Census:

If one district in a large state contains a huge proportion of non-citizens and another district a different state contains a very small proportion of non-citizens, and if both districts contain an equivalent number of eligible citizen voters, why should the larger district be granted more representatives in the US House of Representatives than the smaller district?  Aren't the number of eligible citizen voters the same?

One of the goals of the plaintiffs suing against the Census' citizenship question appears to be to allow "undocumented aliens" to be counted.  This is tantamount to granting permission for "undocumented aliens" to continue to live in the US without fear of expulsion.  This is both wrong and extremely unfair to the aliens who followed the procedures to legally come to the US, receive documentation, and take part in American society.

Moreover, since undocumented non-citizens don't legally file federal taxes (very few do) but receive federally-funded services (very many do), doesn't this mean that the smaller district's eligible voter base citizens might be paying higher taxes to support the larger district's non-voting and possibly-illegal non-citizen population?  How is that fair??

My guess is that the government will prevail on the census citizenship question.  The Constitution requires a census (Article 1 Section II), but is silent about the contents except for "as established  by law".  The law already exists in 13 U.S. Code.  The only way to deny a citizenship question would be to pass a law modifying 13 U.S. Code to change the plenary powers of the Secretary - which would certainly be vetoed by Trump.

Ross may have gone about this the wrong way, but his intent was clear: to ensure that the enumeration counted only those who qualify for "taxation with representation" - American citizens.

Any other arguments, e.g. "undocumented aliens will hide in the shadows" or "we need to encourage participation in law enforcement activities" is a red herring and has nothing to do with the purpose of the census: enumeration to determine political representation.