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 society is constitutionally legitimate. I dont think anyone would disagree with that. We have four justices. If you look carefully and parse, Justice Breyers opinion, he is saying it can never be done and the reason it can never be done is of the suppression of Response Rates consistent with a technocratic view of the Census Bureau. It is never permissible under the census act, theyve not grappled with the 14th amendment arguments. If i were Justice Roberts i would try to have a better trade where i would have said i will kill this on epa grounds but why not get 7 justices that is permissible. Talking about challenge to the constitutionality of the mandate. Not a good deal in my opinion. Why dont you ask your questions in order . Obviously they dont use the term slaves but this is purely historical question of whether there was any controversy who should be counted as a slave and whether plantation owners would say i have 1000 working for me. To bolster the number of people under who could be claimed, comes to mind because after the civil war when slaves were free the southern representation for the bounty on using war. Does anyone know about the county of slaves for representation purposes. Done by americans. And what methods were used. In article 1, not only about slaves and freeman. And added to the number of free persons including those bound to the service for a term of years. And and and and 3 5 of a person, madison addresses this in federalism. And the south wanted it. The senses was disputed from the beginning. Regarding who should be recommended. And there were relatively few citizens compared to today. The whole concept of citizenship was new but goes back to ancient times. We lost the concept of citizen. We equate resident with citizen. People refer to chinese citizen. They are not citizens. They are inhabitants. They are not citizens. Citizen means a person engaged in the political body who has a say. That is what a citizens. One quick point. I dont know if any research in this issue but it is interesting to show you again the lack of this certitude that we hear that this there is exemption in article 1 for why india is not taxed. They have allegiance to a different body politic and if we had several hours we could delve into the question of british practice and public meaning and as john alluded to terse reference to numbers, the committee at that level and what it does. It was fairly straightforward. I didnt understand what john said and i want to make clear the constitution says anybody born in the United States is a citizen. I dont know if this involves if they are born that is different from coming in. Or naturalized. You said chinese are not citizens. In china they refer to their people as citizens. They are not citizens. Our constitution doesnt cover china. That was an example to show how people have diluted the term citizen. It means something. It means more than being a person. A resident. It means you have duties and obligations that go along with your rights. That is why we have the privileges and immunities clause even though the Supreme Court has greatly minimized what that means. The 14th amendment, privileges and immunities and equal protection and due process was taken from roman law. It is different. Time for another question from the audience. Scanning my brain for richard epsteins roman law class. Can you preview after this sentence the litigation on citizenship. It was mentioned the court said you dont have to have district lines drawn by citizens of voting age. Certain states will try to do that. What other things are going to be litigated . Alabama case is already in process. I would say i would have high confidence on good citizenship data, we will get to the deck of two justices talking about intrastate does have political salience because it rebalanced rural and urban counties. I dont personally care about the political salience. Its not an important issue. I think if well litigated despite case law that is well previewed and had to do with challenges to the apportionment, i am reasonably optimistic. I didnt hear anybody make any observations. For the first time, statistical data shows some states augmenting their of electoral and political power at the expense of a 0sum game there is something wrong with it. It fundamentally undermines their regional foundational bargain. That argument was never presented to the court. If numbers are sufficiently dramatic, difficult for someone who is an originalist to say plus the discussion of what a person versus inhabitant mean in the context of article 1 as well as the 14th amendment but i wouldnt go at it immediately. I would start with intrastate redistricting. I want to thank neil for being a capable spokesman for his side and my question is for him and one of my table mates and a question also. I will start with the correction. Subject to the jurisdiction thereof is an ethics topic of conversation as to who is born a us citizen as a matter of constitutional entitlement but my question is in section 2 as david mentioned of the 14th amendment the precise wording is disenfranchised on the basis of representation and shall be reduced in proportion to which the number of male citizens shall bear to the whole number of male citizens 21 years of age in such a state. Of redistricting has to happen or if apportionment representation happened on the basis of census numbers those words were written in 1866, ratified in 1868 was the census question was asked in 182030 but again and 5060. Would the framers of the 14th amendment of understood, 80 of recent censuses the question was always asked, the text seems to presuppose they had that information off the census the way it was asked at that time. Im curious why i am wrong on that. The question for my seatmate is if you owe me 100,000 and i sue to collect the 100,000 you owe me without informing the court of my hatred for you should my suit be thrown out because i hate you . From an esteemed member of the room, thank you. This is a hypothetical question. I think my friend has the highest respect. On the second question, it should be thrown out. So on your first question i think the first place, this is a big conservative doctrine, the first lady does not legislative history but the text of the constitution, you can say what the framers may or may not have thought that they wrote the words which is counting the whole person, hard to read that anywhere else. There could be litigation over it and there probably will be. People like Mister Rivkin will say it is actually inhabitants as a longtime term of art. Inhabitants is not in the constitution so the only problem is the Supreme Court has given deference to the last draft before the draft my second point which i think is quite interesting which relates to sort of a foundation, really interesting scholarship has come out since the decision came out which was really calling into question the factual basis for much of robertss opinion that i havent done the research myself but there has been research that i have read that i respected that the question has never been on the census as census. It has always been to some subgroup that they ask frequently not about citizenship but a lot of the questions were about where they were, not where they were citizens but it is an assimilation issue, frequently asked to a subgroup and since 1950 and has been separate. A lot more litigated about this but that is my general view. Might as well share with you a different question. If you look at the language of the section which it is not courtesy of other things like the Supreme Court if you look at this language it talks about male citizens of 21 years old which was a baseline at that point and it talks if you deny suffrage. And using that. When you abridge the right of 10 of your citizens to vote, and a lot of other noncitizens. If you ever litigate this, that is the validation off of foul language and the language of section 4, people who proposed it, voted and ratified had the same understanding of how article 1, or makes no sense dramatically. In the same section, the same citizenship and it has the same meeting. You made an argument, that case was largely whether or not, you can be excluded from right to vote and what the case decides is i agree with you. If it is in the constitution it is not moreland and the court basically says that is a permissible ground, we are not going to punish you under section 2 for that. And all the citizens, at some point in the future, what you can dream of. Over the age of 21. The driver of the census was for representation purposes. It substantially changed over the years. The numbers of citizens and noncitizens in various jurisdictions across the United States because it affects a lot of welfare policy and other policies. Would that have been defensible . Take a crack at that . I was going to respond this way and i will respond in answer. I separated the constitutional from the statutory function of the census and there is no reason why you cant split those two and it would be possible to say we will only reapportion based on citizens and permanent legal residents but distribute money based on total population because there is population and they are straining resources in the state and that is the way we want to distribute it. If the white house came out with this distinction you would find a lot of the plaintiff dropping off because in any particular census it is marginal as to which states are affected. Last time louisiana, this time alabama and for many public officials, if their state is not affected in terms of representation but they go on to other things. If you have Accurate Information about citizens or noncitizens and decided in your allocation process to implement that so theres a disincentive for states to have a lot of noncitizens but receiving public benefits. Im not adjusting that policy question. I think california which is losing many citizens is replacing them with illegals which is keeping their dollars up. Npr news, first question for professor baker. One of the former Commerce Department attorneys who was involved in the Trump Administrations efforts to get a Citizenship Question. A Law School Student of yours, told the House Oversight committee in an interview that you had discussions with him when the Trump Administration was are preparing a Citizenship Question can you confirm if you were in discussions with Mister Snyder . Conversations with my first friend james on many subjects. Did you discuss you called me to the deposition, i will answer your questions. I sent you an email a few months ago. When you are scheduled for the position can you send a note to everybody here . Happy to do that. Did you discuss the use of Sensitive Information for apportionment, congressional apportionment . The privileges made. Im not going to go into those. I want to have a lawyer here. Remember, any lawyer who represents himself it just curious, why do you think adding a Citizenship Question to the 2030 census if im remembering correctly why would that be important given, preparing for the Trump Administrations orders administrative records would be more accurate. And a third of respondentss are giving false answers so why is it important to have Citizenship Questions . Having information from two different sources, one paid from statistical records by various companies, im not a statistician but there are techniques of reconciling the two baselines that will be useful and the thing that excites me more intellectually than all the other stuff is i would like it results not as the context is depoliticize in the modern day and age not in the context of this coming census but something that happens 10 years from now whether it is permissible, and you have that question, and equal protection, the challenge there was equal protection which resides in the 14th amendment so it would be useful as a country to resolve this without reference to a particular census and in a clean way separating from who said what to whom, who spoke with whom and who testified about what. Why not . What is wrong with that . Clean way . Whether or not in my opinion it is compelled. Of asking one last question after you say what you are going to say. The Census Bureau wanted a statistic model with representation. Congress, not experts but representing common sense, what wilbur ross has done is proven the political instance of congress are better than the expertise of the statisticians. Based on a statistical model. John david, address it briefly stipulating it would be nice to know a lot about composition of the population including citizens and Illegal Immigrants and so forth, what in your view are the two most Important Reasons why we should know as much as possible about that including the question on the census . I come back to my distinction between citizens and noncitizens was we have people who come to this country and get a green card and never become citizens and that could be a problem. Those who are legally on a path dont always become citizens. If we dont value citizenship and dont teach it which we are not by much, my concern is about citizenship. It means something. I made the comment about china and i teach Chinese Students and i love those Chinese Students but to call them citizens is false unless all you mean is resident. What the Census Bureau is doing is counting residents here and they are not counting citizens who live abroad and have the right to vote in this country and are denying them representation. There can be a variety of perfectly legitimate reasons that would help inform the debate about spending, about immigration policy, but most fundamental reason, at the very least have to give states an opportunity to use these numbers for increased state districting and if im right that is an important question in the context of enumeration. It is the american way to get the information and then we can debate what it means. Not getting the in formation is a bad way to proceed. Trying to prevent we will carefully read it, one of the arguments used by folks opposing the use of citizenship data, reliable citizenship data, there will be data produced, i will bet you my house that when people litigate they will say the data is unreliable because its not the right for me numeration. You get the last word. I am usually the odd man out on these panels but i appreciate being invited and the consideration even though for most of you im not articulating views that you think much of. I appreciate that. I think about this from a different viewpoint which as i mentioned earlier this question to me has to do with the enumeration which i believe calls for counting persons which is a i think the constitution says. There will be litigation whether present mean citizens. I think i have the better argument of that. Dont forget the corporations. They have religious rights. I dont know if they can vote yet. I think apportionment is equally on the basis on the basis of persons, not the basis of citizenship but i would say the outcome of the executive order came out after words which is quite consistent with what the experts inside the Census Bureau were saying which is asking the question on the census was not a way to get Accurate Information and disagreed with the secretary after termination, asking, doing it through other ways and getting it through enumeration would produce better data what you end up with his inconsistent data because of the likelihood of answering correctly. Let me just finish. Fundamentally i think the issue is does the constitution require it and questions that interfere with the constitutional requirement of enumeration should not be permitted and Everything Else is an addon because they dont want to ask a bunch of questions anyway but thats not what the constitution talks about. It talks about counting people of the United States and i think we will do fine with the other method and as my friend david says if congress doesnt like it this is not a president ial power but article one of the constitution that congress has the power to alter so long as it complies with the constitution. What do you want to bet whether i am right or wrong that all this information generated from the superior statistical discernment would be absolutely challenged any time someone tries to use it as not being grouped by enumeration . My emphasizing or giving good odds that that will happen . Will somebody challenge it . Of course. If it had been on the census that is what we do in the United States. Derived from me numeration it is constitutionally superior form. If you remember this is the issue we talked about, it is about money. Constitution doesnt compel that part. They can divide the money anywhere they want and they dont have to follow that at all. I think the constitution propels how we do this in adding this question interferes with that constitutional duty. We are out of time and i would like to thank the panelists. [applause] thank the audience, good questions and i think the Federalist Society for putting on affairs like this which we can learn a lot from. [inaudible conversations] taken between 20002017, Grover Cleveland drops from 17th23rd pl. Ulysses s grant makes the most dramatic rise going from 33rd to 22nd spot. Where does your favorite president ranked . Learn that and more about the lives and leadership skills and 44 chief executives on cspans the president s, great vacation reading available where books are sold or cspan. Org thepresident s. A Small Network with an unusual name rolled out a big idea, let viewers make up their own minds. The senate opened the doors to washington policymaking for all to see bringing unfiltered content from congress and beyond. A lot of changed in 40 years in the big idea is more relevant than ever on television, online, cspan is your unfiltered view of government so you can pick up your own mind, brought to you by your cable or satellite provider. I live in a country with no Public Transportation and to do anything her life she needs a car. To functional drive this car she needs a man. Sunday night on q and a Saudi Arabian womens race activist talks about her book daring to derive. A saudi womans awakening about her decisio