From the Federalist Society, this is 90 minutes. Good afternoon and welcome to the federal Society Event on fen citizenship and the census. Im Vice President general counsel and director of groups of the Federalist Society and pleased to welcome you here today. I want to thank the panel and especially the moderator stuart taylor. Before we begin i do want to let you know we had a bit of a medical emergency in the room. A gentle man received assistance and we are told hes going to be fine but if you would like an update coming i, if we get an um the hospital, we will certainly let you know. But our thoughts are with him of course. I mentioned the moderator stuart taylor, an author, journalist here in the washington, d. C. , somewhat of a federal society regular. Youve seen him before, hes wellknown to us. I will introduce halflength but i do want to introduce him for the role of the moderator today. [applause] thank you very much, dean, for coming. Welcome to the Panel Discussion titled citizenship the road ahead on issues entitled to citizenship and i said yeah, what else. Its no citizenship the road ahead on issues surrounding the Trump Administration efforts to make publicly available more information about the numbers of citizens, non citizens and Illegal Immigrants in the country. This includes the administrations plan to include a question of citizenship and the census now starting in the year 2030, that is because the Supreme Courts decision in the department of commerce versus new york made it logistically impossible and the attorney generals words to include a question in the 2020 census. We have three expert panelists to the left john baker who will speak first is the professor prr emeritus at the Louisiana State universitys and the wall center of the group of scholars and other interested people. He is taught and lectured in the United States and abroad to the various government bodies. David rivkin junior is in constitutional law in washington, d. C. And in the department of justice during the reagan and george w. Bush administrations. He is also a frequent contributor to the wall street journal. A litigation partner in the office of kirkland and ellis and Public Service includes white House Counsel for president obama 2014 to 2017, associate counsel from 1993 to 1994, and deputy chief counsel from 1987 to 1988. The format is as follows. John will take about three minutes to introduce the topic and say what this is all about. Then he first and then david and neil will make Opening Statements all from the podium, six minutes each. After the Opening Statements, i will ask questions of the panelists and they will exchange views with one another until about 130. One type of 30. I would then invite members to join in on the questioning. Wheclustering. We. Fullstop 2 p. M. If not before. John, please proceed. Thank you for joining us here today. My introduction is going to be geared to the home audience on cspan. That means as much as possible i will attempt to eliminate legalese. Our constitution requires an enumeration. We otherwise know as the census. This is all about the upcoming 2020 census and every ten years theres a great deal of controversy. It goes all the way back to the beginning when George Washington thought that there was an undercount. And this always seems to come up. The constitutional purpose is the allocation of seats in the house of representatives which the effects the electrical college. But theres Something Else driving the train, and that is that congress has created this with the distribution of money, and often the distribution of money is far more important to those that are concerned about money so virtually every ten years because of litigation about the census. Last time around, david rivkin and i suing for representation to the state of louisiana which lost the seat due to the way we thought it shouldnt have been counted. Anyway, you can be sure the litigation is not over. It will continue for quite a while. In this case that went to the Supreme Court from the new york federal court, there was another case in maryland as well, but the main case was in new york. And the issue is good secretary of commerce and the question of are you a citizen. That was the question. How could that be controversial . There were a number of legal arguments made, but essentially what was at issue was a strategic move in terms of litigation which is all too complicated for the home audience. The case wit was the first to te Supreme Court and back november of last year. Then it came back for the position on the meritdecision oe last day of the term o when the Supreme Court left town. As lawyers know they always drop the bombs before they leave town, and they did that again. In the case itself, a new york and california, a number of states, and at least 184 nonprofit groups making claims about the enumeration of the administrative procedures act and also equal protection. Ultimately, the position doesnt come it comes down on the administrative procedures act. A very boring topic abou which u will hear some day. The process continued. The president responded by saying we are going to account for citizen. The question was how do you do that. The Justice Department was facing the issue that the documents needed to go to printing basically july 1. So there was a struggle over how to deal with this because the Supreme Court in a decision that only a law professor could love have such a convoluted result. It said on the one hand yes, normally they could have this question. They did it the proper justification. They didnt say theoretically it wasnt possible for them to go back down to the lower court, come back again with a different reason. The crowd was running and sure to be plenty of litigation that because there have already been plenty of litigation. This is a decision in which only one justice, chief Justice Roberts had the entire opinion. But ithat is if there were fourn one side but agreed with him that yes, you could ask the question where there were four on one side said no of it said u cant ask the question right now based on what youve told us. Thats why it was so confusing to so many people. After President Trump announced we were going to ask the Citizenship Question there was a loalot of back and forth as woud be the case between lawyers and the whitinthe white house and te department, Commerce Department. Finally they realized as if they probably knew ahead of time as a practical matter, you are not going to be able to the questions. There isnt time to go back to the court and litigate this thing all the way up. It wasnt going to happen. But many people who were not deeply involved in the issues at the end its over. They thought there will be no citizenship information. No on both counts. Its not over. Why . With th the secretary davis to d out in the process critical information. What was that information . People in the Census Bureau were opposed from the beginning to heahear his proposal, and they offered every other kind of way to get the information. And what they revealed was we already have 80 of the information, which came as a surprise to many people. So, he said we will have both the question and what are called the administrative records. Why not just the administrative records . They were not complete at the time. There was a critical part, not complete. So, what happens after that . What happens after that is when the case comes back, it is now moving forward on the basis was argued by thatwas argued by a ss resisting secretary ross. So, now in a way theyve got what they wanted they didnt get what they want. Why . Big problem was you have to negotiate with the other departments to get the information that was lacking. Without that information you wouldnt have a complete picture of citizens versus alien. The key in the president s executive order is that he orders the completion of the records into the departments cooperate with the Commerce Department to give them this information. That means if all that information comes out by a year from now basically, we will know how many citizen and bob citizens primarily aliens but they are not citizens or permanent legal residence its not just about illegal aliens. There are all kinds of foreign students, Embassy Staff and others accounte are counted in s and represented in congress. Very few people even know that. It wasnt a waste of time for secretary ross to do what he did. It opened up a trial of information that the bureaucrats knew about, but the political and know about. It is probably accidental death they gave them the information. So, we all ought to be very thankful to secretary ross for what hes done. The other thing in the executive order notes the case that caset open the question of whether states could redistrict state legislative district based on total population of voter populations that you could guarantee that there would be litigated in the disinformation coming from the Commerce Department will be essential to that. The other is regarding a lawsuit brought by the state of alabama because they anticipate that they will lose congressional seats because of the counting of aliens in the redistribution of the seats. This is the case that we litigated ten years ago regarding the louisiana. You have another minute. Thats never happened before. Why is this important . One of the things he discovered when they got to the administrative records, they matched those against the Citizenship Question on the American Community survey. What happened over the years, the Citizenship Question migrated over to this other form. This is sent out on a rolling basis but only to about 3. 5 Million People. And when the question is asked, it turns out when you compare the administrative records, there is somewhere between 28 and 30 of sensors. People claiming to be citizens who are not. The Census Bureau estimated that there were between 11 to 12 million illegal aliens in the country. The numbers were based on a false estimate of the false responses. Based on the new information for at least 25 million, about 11 or 12. The number is false. And independently of this, there was a study that came out this mention of the executive order that the states that there is somewhere between 16 to 29 million illegal aliens in the country. This is information that the American People deserve to have. Thank you. [applause] probably in the interest of time i will remain seated. I will be very brief since my good friend and colleague laid out the big picture here. Let me just say this isnt one of those issues that unfortunately gets tied up in politics has almost everything these days. Its not surprising, but a little depressing because as it is being pointed out, this has been a continuous feature in the census context from the beginning as john put it this question migrated to a sample of the form. Up until recently, i cannot imagine anybody would seriously argue that this information cannot be perfect leaving aside the administrative procedures act. I certainly agree with the dissent in the case by the justices. Unfortunately it would have been the majority opinion that while the rulemaking was admittedly a tidy, it didnt constitute a sufficient violation of the act. One can also argue as the justice points out in his separate dissent given the language of the act, it was pretty much committed to the secretarys discretion and therefore isnt reviewable judicially at all. What i wanted to say is as follows there are other alternative ways to go forward. We would probably have done as far as the national Citizenship Question on the form is for the purposes of 2020. Its not regrettable in my opinion, but the bureaucratic institutional realities on the timelines were as described. What i would like to see is to see if we can resolve the question of the most fundamental level whether or not it is legitimate to ask such questions i will put you in a second but its also constitutionally compelled. I would like to see this administration put forth the question for the purpose of the census and you may say thats crazy, too many years left between now an and 2030 but i dt have any principled Administrative Law that prevents any agency from engaging in the structure rulemaking lays out helping to tackle the issue. Happens all the time. So we dont need to be dealing with the issues but maybe but to have that point in time but to be duly optimistic. Now that is a fairly new argument not only is it permissible this is including the sheet that said that in the new york case. And that is pretty straightforward that makes clear one of the ways of ensuring of those eligible citizens to vote and in section one to prohibit any state practices to engage in discrimination section two says that if they do that and male citizens 21 years old but but then thats what the decisions should but basically you will diminish your representation in the house. By that same percentage but thats losing the representation in the house. But the math makes no sense. Then from the baseline. But it is funny to me and the 1h amendment and section one in particular but then the section and thats a good way forward to resolve this question on the merits. And the process is in place for the 2030 census. Thank you. [applause] thank you very much david. Now im the only lazy one. [laughter] so now one of the comments that i wanted to make why would anybody object to the Citizenship Question quick. The difficulty is you have to remember that constitutional provision only talks about counting the people in the country but those that ask additional questions that the government for other reasons it would be useful to know the answers in 1950 they decided there were so many that actually telling the people in the country it was a problem so they cut way back in the chief justice opinion so fundamentally the issue was a problem particularly the experts at the Census Bureau but particularly in this to my environment the chief justice does not do much with this president announcing there would be massive raise raids. But to us that question would suppress the response interfere with the constitutional requirement that is what this hold this view was about and the constitutional revision is it is not the ancillary questions that people have decided since we ask questions anyway which it has been pretty common. Let me make a couple other comments. With chief Justice Roberts has come under criticism for the decision he rendered in the case a lot of people and he thought to himself that in this case the lawyers know that saying bad action is bad law but essentially that secretary ross had given testimony under oath about where the Citizenship Question came from man he described it was asked by the department of justice but as the fax came forward that turned out not to be true almost shockingly not true. Not to overstate this but i think hes hoping President Trump is reelected so the that you dove limitations runs out but it is shockingly not true and it calls into question the entire motivation and in the weeks before the decision more evidence came out they had frankly the chief justice had decided if anything the fax would get worse on this issue and he has a whole section of the opinion on deadlines and difference of opinion at least to this question he was not willing to defer because he called the decision of secretary ross contrived and made it quite clear he did not believe the decision so that is something we will come back to but something to do for the courts have decided it isnt a decision or what the decisionmaker was really making. So one or more one or two more points but i think this section argument is farfetched. The 14th amendment did not provide African Americans to vote. Thats the 15th amendment the way the 14th amendment out with the issue you can do whatever you want but if you are precluded from voting you will lose representation into any proportion how many people in your state have been deprived of the right to vote. That is what section two is about. But this is a remedy that it has deprived votes to a significant percentage of the population that hasnt happened not even in reconstruction. The states did not deny the right to vote to africanamericans they put in barriers but not band the outright ability to vote. This is never been implemented. I cannot imagine the state currently contemplating banning the right to vote is citizens over the age of 18 an interesting question that the surviving mail is over 18 but to go straight to the remedy before you have a violation you would ask this of everybody even at some point maine decided it would limit the right to vote for its population which will never happen so if you remedy then this is the pretext making even secretary ross blush. But the final plan want to mak make, i think Justice Thomas does a fair amount of this and its a fascinating place where these cases lie which is the notion of presumption of regularity that typically applies to president s and a number of the cases we have seen with in this case it went across the administration with the military transgender case will come up as the professor had said from time to time at harvard its interesting where the president says what he thinks and then the lawyers are left to clean up the battlefield afterwards so we will continue to see this issue play out in a whole series of cases and much more to come. Thank you very much. I will ask questions in the order of which they spoke the first panelist david would you like to take a few seconds before i start to respond on section two of the 14th amendment quick. Sure. I heard the same arguments. Made by a lot of law professors you will more likely need a lot more litigation but on a variety of reasons just i understand what the 15th amendment does section one of the 14th amendment but its not a question of remedy but if you look at the language in that section and specifically talks of suffrage because they do not have the right of suffrage or because that was the baseline you cannot possibly be in the position to do that which has to be done in a situation. But dont take my word for it is an interesting detail section two specifically allows you to deny suffrage to folks for those who are guilty of participation in the rebellion or of a crime and in 1874 there was a case in my oped piece called richardson versus aletter versus ramirez with justice rehnquist. The question was that yes there are citizens in california that have reached their suffrage rights and people challenge that policy claimed that it violated the equal protection clause six justices of the Supreme Court rejected this challenge basically said someone that is expressly allowed that they could possibly violate the 14th amendment as itself and importantly enough in the process they rejected the argument made by the three dissenting justices that section two to be utilized i will just give you one sentence that section two is made of an amendment that we should have other sections of the amendment for guidance and to interpret. As much a part of that amendment and how that became part of the amendment to say what it means. Thank you david. I gather there may be a problem with your microphone. President trump announced his executive order announced on july 12th quote maxim states they want to have the districts based on the eligible population. The New York Times characterize this as a clear statement yet the administrations ultimate goal to obtain data on citizenship was for Illegal Immigrants and other noncitizens from the population from the longstanding green industry republican circles. Is not the actual reason or the main reason that is that they should question the senses quick. I cannot speak to what President Trump is thinking i know ten years ago but it seems to be preposterous you would count not only aliens if they are here legally or illegally the account numbers for go the Census Bureau says we count everybody but tourists. The last senses they counted a guy in a deportation jail that was being deported that day. These are stata tishs mom statisticians gone wild in the upcoming oped they denied the whole concept of citizenship which i will explain later. They dont understand the constitution so for instance they use the wrong terminology and when it comes to the constitution now its everything. So they said the enumeration clause counts for all people. Know it doesnt. It requires the counting of numbers. Why would they say numbers quirks the word numbers was an abbreviation on the last draft of the constitution number of inhabitants. And the last draft it was not to change what they had agreed to in the first senses and others used count the number of inhabitants. And if you go to the 14th amendment in that same section two after talks about perspective numbers then it goes to mail inhabitants. Those inhabitants were here legally and they were not going back to europe any time soon. So the issue of who is an inhabitant is critical. Legal inhabitants are not foreign students. They are not the aliens who brought themselves here they are not legally inhabiting the United States. Thats the issue. Question. In addition to the points that john made, there is original public meaning if you look at the british practice that goes maybe 100 years before the founding that define what an inhabitant met with british practice it somebody who had appropriate ties to the community in which the person resides. I dont have time but a lot of it had to do with welfare because of different counties were not interested to have neighboring counties dump on them people who needed public support. So the framers understood very well what inhabitants meant. But to me that is something that remains to be litigated. I happen to think litigation would come out a certain way and you disagree with me but the fact we cant even not get the numbers is not right. Would it be a good ideal for the state local districts on voter population that the President Trump suggested that would be a good idea quick. It would also be constitutional to do that. People talk about the case from a couple years ago when the issue was addressed. So i agree a lot of this has to be litigated just to respond briefly. So people in the country have been the standard census after census as part of a political argument thats fine. And as chief Justice Roberts said in his opinion on the apa side on however you think about it. But on a different question is the policy question i think it is probably a bad idea those that represent people in their districts so i think its probably from a policy viewpoint of bad idea but thats my analysis and others have a different view based on an argument point. I suspect others may want to speak to the question specifically if its a good idea or bad idea or a constitutional or unconstitutional to count the eligible voters in state and local districts federal is a different question. Its interesting because in the context that having this question with short forms with the president that when in doubt so everything has been unconstitutional practice prior to that . So he quite carefully took that situation because of the idiosyncrasies of the president so we have to understand so for most of the history everybody in this country was legal for some people can come in and some people cannot so indeed they were inhabitants. They changed the course in modern times you cant count people look at the symmetries and the numbers that we have. And why that distribution of illegal aliens favor states like california that tremendously augments that is really the appropriations issue that the founding was held to balance the power small states or large states but we could talk about the connecticut plan and the debates of the bicameral legislation but to be very much concerned of the electoral college. In states like louisiana or alabama have losing seats and california is gaining seats largely because they are losing quite a bit of their citizen population because of illegal aliens and are making themselves attractive to illegal aliens. But i would submit to you there is something fundamentally wrong from the separation of powers perspective when we now have a mechanism where one group of states can artificially inflate their power over other states. That has never been considered by the Supreme Court as the context whether or not you count eligible citizens but it has never been debated it did not exist and then for many decades it just wasnt that important but if were talking a baseline of 20 Million People that wouldnt make any difference but that puts a serious stress on separation of powers and i dont know how one can take it off the table. As Justice Kagan has said we are all now contextual list and the question among the states i think the constitution which is not policy document that we can without amending it but section two representative should be apportioned according to their respective numbers counting the whole number of persons in each state. The whole numbers of persons in each state that was designed to get rid of the three fifths in the constitution before that. So the issue to apportion state and local legislative district districts, i would argue in light of the explicit language this issue has been resolved and thats the reason of where we are. On this question state and local i realize this is not resolved and i expect there was a case a couple years ago i did not read in preparation for today is not on the top of my head. So i think they will continue litigation over that issue. But it is interesting if you think about it im not a fan frankly but you could end up in a situation doing Different Things within the state allocation so this is an argument to go both directions. Its johns turn and that i have a question. I will repeat the numbers is short for numbers of inhabitants but if total population of voters this is very interesting because if you are an american citizen living outside of the United States not connected to the military or our government you are not counted. But if we go by voters you will be counted. Now what justifies that . You dont realize the independent Census Bureau you can look at it to see the political influence of the Advisory Committee and the argument of where they should be counted and then make arbitrary decisions that could be conducive to counting but not understanding citizenship. They say we will count to you in the place where you normally reside. But if that is regularly and somewhere else even though you are voting over here you will be counted in the state of you have College Age Students are they living at home . No. They are in another state. Whether or not they are legally residing with no evidence of drivers license and voting. Then they become a citizen but this is what i want to say to all parents out there who have students in state schools and other states where they will not give you instate tuition. Heres the argument that you make. [laughter] the argument is the reason the state can deny you instate tuition is because after all, citizens of the state pay taxes and you are coming from out of state and imposing a cost. Guess what quick spy counting you in that state and colleges do this aggressively they will get 1200 ahead for every ten years. If you look down at the numbers, california with public colleges has a net deficit they could pick up a lot of money to sue on this very question of counting citizens in the wrong place. We would have wonderful litigation for a long time and we need this. We need to expose the corruption of the Census Bureau. I will ask a separate question. Three federal trial judges will laura ross is not being truthful in his sworn testimony before congress on the Citizenship Question. Staff send them information. They rely on that information and i can tell you because louisiana did it, a number of attorneys general sent letters to the department asking that this information be available because they have to defend against litigation which always follows the census. Neil talked about motivation and the argument was basically that this administration doesnt care about the rights of people so this has to be a phony argument. As a matter of defense, voyeurs need this information. Its not a frivolous thing. If we start parsing out the motivation not only of the members of the administrative branches and there cant be political motivations. We have to leave this all to the technocrats. I know you had a point he wanted to make. Theres there is a level of jusd many other commentators thought the reason was offered for the trump traveled in the pretext and that the real reason was antimuslim animus. Why did the administration went in that case and the lawyers on a similar pretext issue . In my response i will pick up with the professor mentioned i think it illustrates the degree of deference to the court was willing to give to the administration there was significant evidence even into his administration but in addition to the president , but substantial work by other members of the administration and i think there was a general sense that the process worked and whatever the president may have been saying and whatever his motivation may have been in the process of generally worked. I always sort of chuckle, sally yates was defended for not supporting the troubled him into the justice abandoned the first travel ban and decided to spend either and went to the travel batroubleto number two and ultiy number three. By the time they got to three i teach a lecture at Harvard Law School and i told my students look, i dont know how its going to come out because it cant be that you can never sort of dissipate. But i think that case should have been argued. I never thought the chief justice would find the president a racist and i think it should have been argued on the standard of review wit is a different ise and all that and not really on whether the statements were racist or not. They are all fantastic lawyers and supersmart but i think the problem with the census case its effects have been on it may have been a different issue that the problem was it wasnt like it was an articulated rationale which was logical and one that wasnt | people can have mixed motives were political motives because all that is going to happen. What you had as a secretary that came up with an entire story that was his motivation, i think that was his language to respond to a request from the department of justice that had to do with necessity of defending Voting Rights cases or litigating the Voting Rights cases. I shouldnt say defending, litigating the Voting Rights cases and just didnt turn out to be true so the whole issue of review of administrative actions has got to be fundamental to say the reason for its decision or else the entire judicial review process turns out to be a joke because it is sort of whatever they can come up with the others and in the review and this was an example of the chief justice saying i think you fundamentally agree with Justice Alito and Justice Thoma thomas have that e position was that maybe true but thamay be truebut that is in th. Its someone that had a rationale tha but he said it was sole rationale and that is asking too much of the court to be for a. I interrupted you. I thought you were finished. Its about time for audience questions at first, john has something to add. A memo that was issued that is in him there. I agree with the points between the travel ban case even the worst kind of pain dissipates but look, frankly we have spent a lot of time talking about the issue. They make an excellent point. To me again the more fundamental question is what we should be looking for as a country relative to obtaining information with a whole lot of debates. We dont have time to get into this but i would say the whole point that we eluded to, people have written briefs so its hard to do justice to this but again, getting the numbers, getting the information and having a litigation turn out as it would is about as a reasonable approach as possible. If there is something suspicious of ladies and gentlemen that are so stubbornly eager not to have information because thats not a usual practice in a democracy. They would bar the federal government for any kind of information when it comes from the actual integration or other federal government sent documents is that a good thing . I dont think so. Isnt particularly political. On these issues is how much deference he would grant agencies which is significantly more than the courts of appeals granted to the epa and various other decisions. There was an enormous amount of to the decisions by the secretary even in the face of very little evidence if not any evidence supporting his decision and get the chief justice basically said its his decision to make. Nobody thought it wasnt review of plans and i remember, but basically he was quite deferential and i just sort of wonder. It was a little schizophrenic because hugely deferential, more than i thought it was until the opinion came out. I would have said he was more deferential. I dont know what will happen to there will be another democratic president in the languages they are and we will see what happens when that takes place. The court did say that when you take a look at the common defense judge roberts went further on. They said that that should never happen and when he did that, he opened up the box for that quote and cases to come forth if this was the beginning of the change in the Administrative Law i suspect this is one time only. It is a one run i wonder why ity funny, but again. What is interesting is that talking about the lack of deference, the justices do believe even in the current environment that is infected by the political phase. If we look past Justice Breyers opinion, hes basically saying that it can never be done. The reason it can never be done is because of the suppression of the Response Rate and the fact it consists of a technocratic Census Bureau which is necessary so we have the four justices who think it is never permissible under the act and might grapple with the section of the arguments of its interesting i would at least try to have a better trade but why dont you at least get the seven justices for the position that is inadmissible. Using jordan talking about the challenge of the constitutionality in the mandate. Its not a very good deal in my opinion. It speaks about persons in reference to counting obviously slaves, only they dont use the term. This is a historical question whether there was any controversy over who should be counted as a slave and whether for example plantation owners would say i have a thousand working for me to bolster the number of people who could be claimed for representation, and it comes to mind because after the civil war of course when slaves were free and the southern representation increased which is quite a foundry for losing the war. Does anyone know anything about the counting of slaves with the representation purposes . It was carried out for a long time and i dont know when they switched from that and to what extent what methods they used. Article one provides not only about slaves but others as well if shelby determined by a whole number of persons including those bound to service for a number of years. Is that what you are referring to . The three fifths clause. Its about representation and everyone was to be represented except they were only representatives three fifths a person. Madison addresses this in the federalist. Of the south wanted them counted as persons. The north said no, they shouldnt counted at all. The census had been disputed from the beginning regarding who should be. The key is there is representation is three fifths from the beginning of the representation for others there were relatively few citizens compared to today. Remember the whole concept of citizenship was new and it goes back to ancient times. Today weve lost the concept. We declared resident or citizen. People refer to chinese citizens, they are not citizens. They are inhabitants. Citizen means a person engaged in the political body who has a say. Its interesting to show you again for lack of certitude that we hear. There are specific exceptions in article one. Its because they owe their allegiance to a different body policy because we talk about the nations etc. And again if we had several hours, we could delve into the question of the public meaning into the numbers at what happened at the level and what it does but its not a useful purpose for today. Theres a lot more here than a fairly straightforward. Anybody born in the united unitd states as a citizen. Speed thats different than coming in you said chinese are not citizens. In china they referred as inhabitants. It was an example to show how people have diluted the term citizen. It means more than simply being a person. More than being a resident. It means you have duties and obligations that go along with your rights. That is where we have the privilege and the clause even though theyve greatly minimized what that means. The 14th amendment on the privileges and immunities of the due process. Can you preview the litigation thats going to happen as it was mentioned you dont have to have the line drawn and certainly certain states will try to do that so what other things are going to be litigated . I would say that i would have high confidence that we are going to get to the point where it is permissible to talk about intrastate redistricting which does have political salience because it rebalanced the rural and urban counties. I happen to think of it as well litigated. I am optimistic for the first time they are augmenting their electoral process because of the zerosum game but that argument was never presented to the cou court. If the numbers are sufficiently dramatic its difficult for somebody to say a person versus an inhabitant in the context of article one as well as the 14th amendment. But i would first start with intrastate redistricting. Thank you for the debate and my question is for him. I would start with the correction though its an active topic of discussion. My question is in section two of the 14th amendment, the precise wording is disenfranchised in proportion to which male citizens shall bear to those 21 years of age if the redistricting has to happen for a basis of census numbers, those words were written in 1866 and ratified in 1868. The question was asked in 1820 and 30 and again and 50 and 60 with the framers of the amendment be embarrassed to 80 of the race and send this the question was always asked it seems to presuppose they had that information the way that it was being asked so im curious as to why im wrong, and the question if you hate my guts and only 1,000 i sue to collect the 100,000 u. Only without 100,000 view of me without informing the court a hatred for you, should my lawsuit be thrown out because i hate you . [laughter] this is a hypothetical question. If it is against me, of course it should be thrown out. [laughter] on the first question, this is a big conservative doctrine of first place you g you could liso the opposite of history but the text and constitution can say what they may or may not have thought that i think they wrote the words counting the whole person. Its hard to read that anywhere else. There can be litigation and there probably will be staying inhabitants is infinite constitution. The problem the Supreme Court has given deference to the last draft before. The second point that is interesting and relates to a sort of foundation the scholarship has come out since the decision came out which was calling into question the factual basis for much of the opinion that i havent done the research myself, but theres been research ive read by respected academicians that the question has never been on a send this as census its always been to a subgroup that bs frequently the questions are where they were born not where they were citizens because the issue i is sort of an assimilatn issue and frequently asked a subgroup of them obviously since 1950s its largely from a subgroup so there will be a lot more litigated about this but that is my general view of the question. If you look at the link which [inaudible] if you look at this language, it talks about male citizens 21yearsold which was a baseline at that time an the tit talks about if you deny suffrage. The language can only work mathematically using this for your baseline because if you abridge 10 of the citizens to vote but representation in the house it is a validation of the language, not just the intent of the understanding that led to the language means the people who proposed it voted on it, had it ratified inthave it ratifiede understanding of how article one, section two works otherwise it makes no sense mathematically to play with the numbers. In this section you are arguing they have the same meaning and most would say that this is true that if of it if d make another point, you made an argument about the 74 case. The case was largely whether or not, and i agree, section two, article 14 specifically says if youve committed a crime you can be excluded from the right to vote and the case of the sites i agree with you if its in the constitution. The court basically said thats a permissible ground and we are not going to punish you under section two for that but it doesnt mean every ten years you have to count all the citizens because at some point in the future nobody can possibly dream of there might be some exclusion as a class of voting and that is essentially what your argument does. Its clear that the driver of the censu census with the representation purposes. The functions substantially changed over the years. Secretary ross had said its important that we know the number of citizens and noncitizens in the jurisdictions across the United States because it affects a lot of welfare policies and other policies. Would that have been defensible . I was initially going to respond this way i separated from the statutory function and there is no reason why you cant split those two and it would be quite possible to say we are only going to reapportion the citizens and permanent legal residence to distribute money based on total population because they are straining the resources in the state. I think you would find a lot of the planets dropping off because in any particular census it is marginal which states are effective. For many Public Officials and organizing groups, if their state has not affected in terms of representation, they will go on to other things. But if theres Accurate Information about the citizens and noncitizens and decided in thdecide theallocation process t that so there would be a disincentive yes, i think that california which is losing many citizen is replacing them wit with illegal sandwiches keeping their dollars up. My first question is for professor baker. One of the former Commerce Department attorneys who was involved in the administrations investigative question, james booth flyer i think was involved as a student of yours and told a House Oversight committee in the interview that you have been discussing things with him when the Trump Administration was preparing a request. Can you confirm if you were in discussions . They were conversations with my good friend on many subjects. Did you discuss when you call me to the deposition, i will answer questions. [laughter] [applause] when you are scheduling that, can you send a note to everybody so we can all hear the show . Happy to do that. Did you discuss the use with the congressional purposes . Privileges made. Im not going to go into those. I dont have a lawyer here. Remember, any lawyer that represents himself has a fool for a client. But i believe to reconcile the two baselines that would be useful and what excites me more than the apa stuff is that i would like it resolved in the context as possible in modern day and age but not this coming census but something that will happen ten years from now whether or not it is permissible to be asking this question and with suppression and equal suppression because the challenge there was equal protection and to and i dont know any good reason and i dont know why not. And those merits in my opinion it is constitutionally compelled and is constitutionally allowed that in this case it is allowed so lets run it to the ground. We are almost out of time to announce the moderators prerogative after you say what you were going to say. The Census Bureau wanted to do a statistical model to have representation in congress whether representing common sense what wilbur ross has done is proven those political instincts are much better than the expertise of the statistician we dont have distribution of house seats we have actual renumeration. And to address that briefly with the population including Illegal Immigrants what are the two most Important Reasons why we should know as much as possible and include that quick. Coming back between citizens and noncitizens people come into this country to get a green card and never be a citizen and thats a problem but if we dont value citizenship and we dont teach it which we are not it means something so i made the comment about china and i love these Chinese Students but to call them citizens is false and it is resident what the Census Bureau is doing is counting residents here even embassies stats and then not counting citizens who live abroad who have a right to vote in this country and denied representation. And also very briefly for legitimate reasons about spending and immigration policy to give space and opportunity and thats a very important question and it is the american way to get information and one last. 1 of our arguments with citizenship data is not reliable citizenship data and now while its produced on the executive order they would say the data is unreliable. Im usually out on these panels but to tell everybody how much i appreciate to be invited with those articulating views so as i mentioned earlier this question has to do with renumeration for counting persons which i think the constitution says meaning whether or not they actually mean citizens. Dont forget the corporations. [laughter] just religious right at all think they can vote yet but on the basis but not on the basis of citizenship but the outcome of the executive order that came out afterwards that asking the question was not a way to get Accurate Information and to disagree and to do that and get it through the renumeration so let me just finish for a second. So was it required that interfered with the constitutional requirement of renumeration Everything Else is an addon. And if it turns out congress doesnt like it then remember this is article one power that congress has the power to alter as it complies with the constitution. I apologize i was going to ask you a question. And then to be absolutely challenged. And somebody will challenge it is not derived from renumeration. And thats in superior form. So just as you remember but the constitution doesnt compel that part. They can divide up the money anyway they want and to add this question. We are out of time thank you for your wonderful remarks. [applause] thank you to the Federalist Society to put on the affairs like this of which we can learn from. [inaudible conversations] where there is no Public Transportation but for a woman to do anything she needs a man. But the right to drive is a woman is not supposed to drive that we are capable while doing this act of civil disobedience