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Monday, November 30, 2020

Trump v. New York

From the oral argument today, the most likely result is that the Court will either decide the case without reaching the merits or stall for as long as possible and hope that there is more information from the Department of Commerce about the count of people who are in the United States illegally.

I want to add one observation. The case is in a curious posture because the reapportionment laws were written on the assumption that the process be mechanical rather than value-laden. A point that went unstated at argument is that the lame-duck President will make the report to Congress. This is an odd result, especially given that the President's determination will be final, unlike a typical executive order that can be overturned by the new President. How did we end up with that?

The answer is that the reapportionment laws say that the President's report must be made in January after the census year in such a way that must occur before January 20th. I'm not sure if that was intentional or an oversight. To be fair, a presidential election only coincides with the census every twenty years. It so happens, though, that four of those conjunctions accompanied a transfer of power from one party to the other (1961, 1981, 2001, 2021). Maybe the thought was that in that situation an outgoing President would not break with practice with respect to reapportionment. Alas.

Posted by Gerard Magliocca on November 30, 2020 at 03:03 PM | Permalink

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Posted by: kindlehelpus2 | Dec 9, 2020 1:17:50 AM

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Posted by: kindlehelpus2 | Dec 9, 2020 1:16:33 AM

It's a good question. Basically, the answer is that then that was considered a political question. The Supreme Court never weighed in on that though.

Posted by: Gerard | Dec 1, 2020 10:01:03 AM

One hundred years ago, Congress looked at the 1920 Census results and seeing the massive reapportionment accruing to the Midwest (Detroit and Cleveland were the Dallas and Houston of that generation) and simply refused to vote to authorize changes to the size of each state's Congressional representation. Needless to say, this refusal to obey a basic constitutional obligation was led by the prospective losers in the South, Great Plains, and New England.

Does anyone here know why the courts did not intervene in a case like this? It's not like this was a time when the courts refused to intervene in any matter at all.

Posted by: PaulB | Dec 1, 2020 9:59:05 AM

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