Skip to content

Judicial Watch • 2012 louisiana-v-census-amicus-01132012

2012 louisiana-v-census-amicus-01132012

2012 louisiana-v-census-amicus-01132012

Page 1: 2012 louisiana-v-census-amicus-01132012

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

No. 140, Original THE 

Supreme Court the United States 
STATE LOUISIANA AND 
JAMES CALDWELL, ATTORNEY GENERAL, 
Plaintiffs, 
JOHN BRYSON, SECRETARY COMMERCE, 
ROBERT GROVES, DIRECTOR, UNITED STATES 
CENSUS BUREAU, AND KAREN LEHMAN HASS, 
CLERK, UNITED STATES HOUSE REPRESENTATIVES, 

Defendants. 
BRIEF JUDICIAL WATCH, INC. AND 
ALLIED EDUCATIONAL FOUNDATION 
AMICI CURIAE SUPPORT PLAINTIFFS 
MOTION FOR LEAVE FILE COMPLAINT 

Paul Orfanedes 
Counsel Record 
James Peterson JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington,  20024 porfanedes@judicialwatch.org 
(202) 646-5172 
Counsel for Amici Curiae 
QUESTION PRESENTED 
Amici curiae address the following question only: 
Whether unlawfully present aliens should becounted for purposes apportioning seats theUnited States House Representatives and, turn, the number electors representing each State the Electoral College. 
TABLE CONTENTS QUESTION PRESENTED ......................................... TABLE CONTENTS ............................................ TABLE AUTHORITIES ..................................... iii INTERESTS THE AMICI CURIAE ..................... STATEMENT THE CASE .................................... REASONS FOR GRANTING THE MOTION FOR 
LEAVE FILE COMPLAINT ............................. 	Failure Enforce Our ImmigrationLaws Has Resulted the Critical  Issue Raised This Case .............................. 
II. 	The People the United States ShouldBe the Basis For Apportionment  .................. 	Unlawfully Present Aliens AreNot Part the Political Community .... 	Aliens Are Routinely TreatedDifferently Under the Constitution ...... 
III. 	Apportionment Based the Presence ofUnlawfully Present Aliens UnderminesOur Federal System ..................................... 
CONCLUSION ..........................................................  

TABLE AUTHORITIES 
CASES 
Ambach Norwick, 441 U.S. (1979) ........................................ 14, 
Balzac Porto Rico, 258 U.S. 298 (1922) ............................................ 
Bernal Fainter, 467 U.S. 216 (1984) ...................................... 14, 
Bluman FEC, No. 11-275 (U.S. Jan. 2012) ..................... 15, 
Cabell Chavez-Salido, 454 U.S. 432 (1982) ...................................... 14, 
District Columbia Heller, 554 U.S. 570 (2008) .............................................. 
Foley Connelie, 435 U.S. 291 (1978) ...................................... 14, 
Graham Richardson, 403 U.S. 365 (1971) ............................................ 
Gregory Ashcroft, 501 U.S. 452 (1991) ............................................ 
INS Lopez-Mendoza, 468 U.S. 1032 (1984) .......................................... 
Johnson Eisentrager, 339 U.S. 763 (1950) ............................................ 
Mathews Dietz, 426 U.S. (1976) .............................................. 
Minor Happersett, U.S. 162 (1875) ............................................ 
Perkins Smith, 370 Supp. 134 (D. Md. 1974), affd 426 U.S. 913 (1976)  ................................... 
Plyler Doe, 457 U.S. 202 (1982) ...................................... 12, 
Shaughnessy United States rel. Mezei, 345 U.S. 206 (1953) ............................................ 
Sugarman Douglas, 413 U.S. 634 (1973) ............................................ 
United States Arizona, 703 Supp. 980 (D. Ariz. 2010)  .................... 
United States rel. Turner Williams, 194 U.S. 279 (1904) ...................................... 13, 
United States Verdugo-Urquidez, 494 U.S. 259 (1990) ................................. 11, 12, 
Wong Wing United States, 163 U.S. 228 (1896) ............................................ 
Yick Hopkins, 118 U.S. 356 (1886) ............................................ 
STATUTES AND CONSTITUTIONAL PROVISIONS 
U.S.
 Const. art.  cl.1........................................... 

U.S.
 Const. art.  cl. .................................... 

U.S.
 Const., art. II,  cl. ................................. 

U.S.
 Const. amend. XIV,  ....................................... U.S.C.  1101-1778(Immigration and Nationality Act)  ..................... 
OTHER AUTHORITIES 
Akhil Reed Amar, The Second Amendment: Case Study Constitutional Interpretation, 2001 Utah Rev. 889  ................................... 
Peter Baker, Obama Urges Fix  Broken Immigration System, 
N.Y. Times, July 2010  ..................................... 

Chamber Commerce Whiting, No. 09-115, Transcript Oral Argument   (Dec. 2010) ........................................................ 
U.S. Census Bureau, Frequently Asked Questions, (http://www.census.gov/population/  apportionment/about/faq.html#Q16)  .................. 

INTERESTS THE AMICI CURIAE1 
Judicial Watch, Inc. non-partisaneducational foundation that seeks promote transparency, accountability and integrity government and fidelity the rule law.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission. 
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverseareas study, and has appeared amicus curiae this Court number occasions. 
Amici are concerned about the failure enforce the nations immigration laws and the corrosive effect this failure our institutions and the rule law. Among the problems caused this failure redistribution seats the U.S. House Representatives States with large populations ofunlawfully present aliens. Amici respectfully submit that neither Article Section the U.S. Constitution, the Fourteenth Amendment, any other provision the Constitution authorize orpermit the inclusion unlawfully present aliens Pursuant Supreme Court Rule 37.6, amici state that counsel for party authored this brief whole part; andthat person entity, other than amici and their counsel, made monetary contribution intended fund the preparationand submission this brief.  More than ten days prior the due date, counsel for amici provided counsel for Respondentswith notice their intent file.  All parties have consented the filing this brief; letters consent have been lodged withthe Clerk. 
the apportionment process. result, this case raises issues critical not just Louisiana, but every State, every American citizen, and our federal system government. For these reasons, Amici urge the Court grant Plaintiffs motion for leave file complaint. 

STATEMENT THE CASE 
This case challenges the federal policy including unlawfully present aliens2 the census figures used apportion seats the House ofRepresentatives. result this policy, the Stateof Louisiana alleges that has been deprived anadditional Member Congress which the State isentitled, well additional elector the Electoral College. 
Article Section the U.S. Constitution mandates that census taken every ten yearsexpressly for the purpose apportioning seats the House Representatives. The census figures arethen used divide the 435 seats the Houseamong the States. The census counts self-described residents each State.  Because effort made differentiate among lawful and unlawful residents, millions unlawfully present aliens are therefore included the tally. fact, the Census Bureau admits that counting undocumented residents for apportionment purposes its express Instead unlawfully present aliens, Plaintiffs refer nonimmigrant foreign nationals, which includes holders studentvisas and guest workers. Amici agree that these groups alsoshould not counted for purposes apportioning House seats. 
policy. See U.S. Census Bureau, Frequently AskedQuestions, (http://www.census.gov/population/-apportionment/about/faq.html#Q16). 
Because the population unlawfully present aliens not distributed uniformly among the States,the inclusion these individuals apportionment calculations alters the apportionment seats theHouse Representatives. States containing largepopulations such individuals are apportioned House seats the expense States containing relatively few. The Census Bureaus decision count unlawfully present aliens the 2010 Censusfor apportionment purposes allegedly will cause least five States lose House seats which they are entitled, and least three States gain seats which they are not entitled. That apportionment, inturn, determines the apportionment electors the Electoral College for the next three presidential elections. U.S. Const., art. II,  cl. 
Louisiana among the States that will lose aHouse seat due the inclusion unlawfully present aliens the apportionment count. unlawfullypresent aliens had not been included the 2010apportionment count, Louisiana allegedly would have been apportioned seven House seats. Based the Census Bureaus calculation, however, Louisiana due only six. effect, representation taken away from States such Louisiana with high percentage U.S. citizens that new congressionaldistricts can created states with relatively large populations unlawfully present aliens.  This reduces States representation Congress and, because representation the House affects the number Electoral votes State has the Electoral College, impacts Presidential elections. 

REASONS FOR GRANTING PLAINTIFFS MOTION FOR LEAVE FILE COMPLIANT 
The policy counting unlawfully present aliens the nations decennial census unconstitutional and undermines both our federal system government and our democratic institutions. Byfailing enforce our immigration laws, are losing control fundamental right  the right ofAmericans democratic representation. The Constitution unequivocally states that representation the peoples chamber  the House Representatives  determined thePeople the several States. Longstandingprecedent has held that the terms the People and persons refer the political community andmembers the political community.  The countingof unlawfully present aliens the apportionment process redefines this concept the politicalcommunity. 	Failure Enforce Our Immigration Laws Has Resulted the Critical Issue Raised This Case. 
This case arises direct result the failure enforce our nations immigration laws. The most comprehensive these laws, the Immigration and Nationality Act, enacted 1952, plainly regulates the conditions upon which aliens may enter and remain the country. U.S.C.  1101-1778. The federal government tasked with, among otherthings, detaining illegal immigrants and ensuringtheir departure (or removal) from the United States. Yet even President Obama has recognizedthe failure enforce our immigration laws, conceding that the the system broken and everybody knows it. Peter Baker, Obama Urges Fix Broken Immigration System, N.Y. Times, July 2010. Furthermore, Justice Scalia has wryly noted, nobody would [have thought] that .the Federal Government would not enforce [immigration laws]. course, one would have expected that. Chamber Commerce Whiting, No. 09-115, Tr. Oral Arg. pp. 7-8 (Dec. 2010). 
The result this failure, described one court, has been rampant illegal immigration. United States Arizona, 703 Supp. 980, 985
(D. Ariz. 2010). Either design neglect, both, have allowed least million aliens remain our country unlawfully.  Our failure enforce our immigration laws has had widespread effects our nation, which range from employment issues topolice practices, education, and healthcare. also has another critical effect undermines the rule law. 
The corrosive effect that our failure enforce our immigration laws has had the rule law can seen from many vantage points.  For instance, even though federal law prohibits the employment unlawfully present aliens, the federal governmentprovides tax identification numbers unlawfully present aliens and accepts their tax dollars earned from unlawful employment. Meanwhile, some States grant in-state tuition unlawfully presentaliens who attend their colleges and universities. They even though these students will not, atleast lawfully, able hold employment followingtheir schooling. 
The failure enforce our immigration laws alsohas harmed relations between the States and the federal government. Due this lack enforcement, number States have stepped aid theenforcement effort. Instead welcoming thisassistance, the federal government has sued these States for their efforts. One these laws currently before the Court. Arizona United States, No. 11-182 (cert. granted Dec. 12, 2010). the same time, other jurisdictions around the nation haveenacted sanctuary policies. Such policies statedpurpose try and shield unlawfully presentaliens from law enforcement. this case now demonstrates, the failure enforce our laws now undermining not just therule law, but foundational aspect ourrepresentative democracy. skewing Statesrepresentation our federal system government. This case thus raises question significant consequence. should decided the Court. 

II. 	The People the United States Should the Basis For Apportionment. 
The Constitution provides that Representatives are chosen by the People the several States, U.S. Const. art.  cl.1. These Representatives .shall apportioned among the several States .according their respective Numbers3 and that the whole number persons each State4 shall used for apportionment. Plaintiffs demonstrate their motion, person has long been understood indicate stronger relationship State than mere presence. This entirelyconsistent with Article which confirms that representatives are chosen not persons who are merely present within the geographic boundariesof district, but the People the several States. 
This Court considered the question who person decision issued only six years afteradoption the Fourteenth Amendment. Minor Happersett, U.S. 162 (1875), Chief Justice Waite,writing for unanimous Court, analyzed whether the Fourteenth Amendment extended suffrage towomen who were citizens one the privileges and immunities citizens. The Court began explaining the nature citizenship this way: 
There cannot nation without people. The very idea political community, such nation is, implies U.S. Const. Art.  cl. Id. amend. XIV,  association persons for the promotion their general welfare. Each one the persons associated becomes member the nation formed the association. owes allegiance and entitled its protection. Allegiance and protection are, this connection, reciprocal obligations. This one compensation for the other; allegiance for protectionand protection for allegiance. 
Id. 166-67. Through these reciprocal obligations,according the Court, political community isformed. Id. 
Importantly, the Court then explained that apolitical community comprised persons and that these persons are sometimes referred inhabitants citizens.   Id. 166. Citizens were then distinguished from aliens foreigners,who were, course, not citizens but could naturalized. Finally, the Court noted that [w]omenand children are, have seen, persons. They are counted the enumeration upon which apportionment made . Id. 174. 
While the Court concluded that the Fourteenth Amendment did not extend suffrage women, the decision demonstrates plainly the contemporary understanding the contours the politicalcommunity. Even though they did not have rightto vote, women were recognized within thepolitical community persons and citizens.  They were part the People were children.  Aliens were not. 
More recently, District Columbia Heller, the Court considered the meaning the People asreferenced various parts the Constitution. 554 
U.S. 570, 579-81 (2008). The phrase appears thePreamble (We the People), the First, Second, Fourth, Ninth, and the Tenth Amendments, and Article Is provision dealing with popular election ofthe House Representatives. The Court adoptedChief Justice Rehnquists majority opinion United States Verdugo-Urquidez defining the People: 
[T]he people seems have been aterm art employed selected partsof the Constitution [It] refers class person who are part acommunity who otherwise developedsufficient connection with this country considered part that community. 
See Heller, 554 U.S. 580 (quoting United States Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). 
The Court Heller the confirmed that the reference the people the Second Amendment unambiguously refers members the political community. 554 U.S. 580.5 Thus, the People explained Professor Akhil Amar: 
When the Constitution speaks the peoplerather than persons, the collective connotation 
refers persons who are part connected thepolitical community the United States. 	Unlawfully Present Aliens Are Not Part the Political Community. 
Section the Fourteenth Amendment directs that the whole number persons counted forapportionment. This directive, however, has never been interpreted encompass every singleindividual physically present the United States. Section itself excludes Indians not taxed from apportionment, they were distinct communities, primary. the Preamble, We the People ordain and establish this Constitution: public citizens meeting together conventionsand acting concert, not private individuals. The only other reference the people the Philadelphia Constitution 1787 appears asentence away from the Preamble, and here,too, the meaning public and political, notprivate and individualistic: every two years,the People  that is, the voters  elect the House 
The rest the Bill Rights confirms this republican reading.  The core the First Amendments Assembly Clause the right ofthe people  essence, voters  assemble constitutional conventions and other political conclaves. Likewise, the core rights retained and reserved the people the Ninth and Tenth Amendments were rights the peoplecollectively govern themselves democratically. 
Akhil Reed Amar, The Second Amendment: Case Study Constitutional Interpretation, 2001 Utah Rev. 889, 892-93. 
not nations, separate from our political community. Similarly, while unlawfully present aliens may persons, they are not part our politicalcommunity and, therefore, not properly included inapportionment. 	Aliens Are Routinely Treated     Differently Under the Constitution. 
This Court has long recognized that aliens (whether lawfully unlawfully present) are entitledto certain minimum constitutional protection. Justice Jacksons ascending scale rights analysisis fully applicable today: 
The alien, whom the United States has been traditionally hospitable, hasbeen accorded generous and ascending scale rights increases his identity with our society. Mere lawful presence the country creates implied assurance safe conduct and gives him certain rights; they become more extensive and secure when makes preliminary declaration intention become citizen, and they expand those full citizenship upon naturalization. 
Johnson Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). result, lawfully present aliens who are present within the Constitutions jurisdiction and have developed substantial connections with this country are entitled certain constitutional protections.  Verdugo-Urquidez, 494 
U.S. 271. See, e.g., Graham Richardson, 403 

U.S.
 365, 376 (1971) (resident aliens may raise equal protection challenges under the Fourteenth Amendment); Wong Wing United States, 163 U.S. 228, 238 (1896) (resident aliens entitled certain Fifth and Sixth Amendment rights); Yick Hopkins, 118 U.S. 356, 369 (1886) (resident aliensprotected due process rights Fourteenth Amendment). 

Neither lawfully present aliens, and certainly not unlawfully present aliens, possess the full array rights and privileges U.S. citizens, including political rights. the contrary, that status, definition, places such individuals outside the fullscope protections the Constitution: reject the claim that illegal aliensare suspect class. case which have attempted define suspect class has addressed the status persons unlawfully our country.Unlike most the classifications that have recognized suspect, entryinto this class, virtue entry intothis country, the product voluntaryaction. Indeed, entry into the class isitself crime. addition, could hardly suggested that undocumentedstatus constitutional irrelevancy.With respect the actions theFederal Government, alienageclassifications may intimately related the conduct foreign policy,to the federal prerogative control access the United States, and the plenary federal power determine whohas sufficiently manifested allegiance become citizen the Nation. 
Plyler Doe, 457 U.S. 202, 221 n.19 (1982).  See, e.g., Verdugo-Urquidez, 494 U.S. 268-69 (rejectingapplication Fourth Amendment search foreign national because not every constitutionalprovision applies wherever the United States Government exercises its power); INS Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (Fourth Amendment exclusionary rule not applicable civildeportation proceedings); Mathews, 426 U.S. 7980 (In the exercise its broad power over naturalization and immigration, Congress regularlymakes rules that would unacceptable applied citizens. The exclusion aliens and the reservation the power deport have permissible counterpart the Federal Governments power toregulate the conduct its own citizenry.); Shaughnessy United States rel. Mezei, 345 U.S. 206, 210 (1953) (Courts have long recognized thepower expel exclude aliens fundamentalsovereign attribute exercised the Governmentspolitical departments largely immune from judicialcontrol.); Balzac Porto Rico, 258 U.S. 298 (1922)(Sixth Amendment did not extend right jury trials territories within U.S. control like Puerto Rico); United States rel. Turner Williams, 194 U.S. 279, 292 (1904) (excludable alien not entitled First Amendment protection from deportation because [h]e does not become one the people whomthese things are secured our Constitution anattempt enter, forbidden law). 
One critical way which aliens are treateddifferently that they not have the same political rights citizens. The Court has made clear that aliens may denied certain rights and privilegesthat U.S. citizens possess, especially when they touch upon our democratic institutions. For example, the Court has ruled that government may bar aliens from voting, serving jurors, working police probation officers, working publicschool teachers.  See Cabell Chavez-Salido, 454 
U.S. 432 (1982) (upholding law barring aliens fromworking probation officers); Ambach Norwick, 441 U.S. (1979) (upholding law barring aliensfrom teaching public schools unless they intend apply for citizenship); Foley Connelie, 435 U.S. 291 (1978) (upholding law barring aliens from servingas police officers); Perkins Smith, 370 Supp. 134
(D. Md. 1974), affd 426 U.S. 913 (1976) (upholding law barring aliens from serving jurors); Sugarman Douglas, 413 U.S. 634, 648-49 (1973)(citizenship permissible criterion for limiting the right vote hold high public office).Moreover, the Constitution itself bars aliens from holding certain offices.  See U.S. Const. art.  
U.S. Const. art. II,  those many decisions, the Court has drawn fairly clear line: The government may excludeforeign citizens from activities intimately related tothe process democratic self-government.  Bernal
 Fainter, 467 U.S. 216, 220 (1984); see also Gregory
 Ashcroft, 501 U.S. 452, 462 (1991); Cabell, 454 

U.S. 439-40. the Court has written, a States historical power exclude aliens from participationin its democratic political institutions [is] part thesovereigns obligation preserve the basic conception political community.  Foley, 435 U.S. 295-96 (internal quotation marks and citationomitted). 
When reviewing statute barring foreigncitizens from serving probation officers, the Court explained that the exclusion aliens from basicgovernmental processes not deficiency thedemocratic system but necessary consequence ofthe community's process political self-definition. Cabell, 454 U.S. 439 (emphasis added).Upholding statute barring aliens from teaching public schools, the Court reasoned that the distinction between citizens and aliens, though ordinarily irrelevant private activity, fundamental the definition and government State because this special significance ofcitizenship that governmental entities, when exercising the functions government, have widerlatitude limiting the participation noncitizens. Ambach, 441 U.S. (emphasis added).  And upholding ban aliens serving police officers, the Court stated that, although extend aliensthe right education and public welfare, along with the ability earn livelihood and engage inlicensed professions, the right govern reservedto citizens. Foley, 435 U.S. 297. See also Bluman FEC, No. 11-275 (Jan. 2012) (affirming that aliens living the United States have constitutional right try influence U.S. elections for any government office). 
The Court thus has recognized numerous distinctions aliens under the Constitution and confirmed that they stand outside our politicalcommunity. The Constitution does not recognize aliens, and particular, unlawfully present aliens, members the political community. Apportionment should not based their presence. 
III. 	Apportionment Based the   Presence Illegal Aliens Undermines Our Federal System. 
The tangible effects counting illegal aliens for purposes apportionment are manifest. Because the failure enforce our immigration laws, large populations illegal aliens are present certainStates. have allowed this problem grow suchthat now skews key institutions our democracy. 
Unlawfully present aliens, however, are not part our political community does not include every person who may present United States. The Census Bureau itself does not count all persons who may physically present, itexcludes, for example, foreign diplomats and foreigntourists. Such persons may present the time ofthe census, but they are not part our politicalcommunity  nor are they the People the several States  and they are properly not counted. 
Illegal aliens are not included for the same reason. They are not part the political community and counting them for purposes apportionmentunconstitutionally increases representation for some states while diminishing for others.  The gain orloss seat Congress also directly affects thesize states congressional delegation and its influence. The Electoral College also affected asthe number electors from each State based the size their respective congressional delegations.   
Failure enforce our immigration laws has brought this problem the fore. has demonstrable and unconstitutional effects our democracy and cannot ignored. 

CONCLUSION 
For the foregoing reasons, Plaintiffs motion forleave file original complaint should granted. 
Respectfully submitted, 
Paul Orfanedes 
  Counsel Record 
James Peterson JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington,  20024 porfanedes@judicialwatch.org
(202) 646-5172 
Counsel for Amici Curiae 
January 13, 2012



Sign Up for Updates!