The following is a guest post by Joseph Fishkin:

The State of Alabama, along with U.S. Rep. Mo Brooks (R-Huntsville), filed an unusual lawsuit last week against the Census Bureau. The suit demands that the census bureau stop counting “illegal aliens” in the Census.

This claim is related to, but far bolder and wilder than, the claim some conservative activists pushed all the way to the Supreme Court in the 2016 case of Evenwel v. Abbott. In Evenwel, the plaintiffs’ claim was that only voters, rather than all persons, should count for purposes of districting (at the state level). Some places have relatively more children, non-citizens, and others ineligible to vote than other places; the plaintiffs in Evenwel wanted each district to contain the same number of voters, instead of the current practice of having each district contain the same number of people. The difference has considerable partisan stakes: if the Evenwel plaintiffs had succeeded, the effect would be to shift representation and political power away from places with lots of children and/or lots of immigrants and toward areas that are older, whiter, and often more Republican. Still, Evenwel did not aim to mess with the Census count itself. Alabama’s new claim is bolder because it argues that the Bureau should simply not count certain non-citizens at all–for any purpose. (It’s not entirely clear which non-citizens Alabama wants the Census to not count. In a footnote on page one, the complaint defines the term “illegal alien” to include anyone who has overstayed a visa, or anyone who originally entered illegally, apparently regardless of their current visa status. This strikes me as likely an error, but it’s hard to know. Where Alabama’s counting rule would leave the many people whose current status is pending before a court, and where it would leave the many U.S. citizen children living in households with their “illegal alien” parents, I also do not know.)

Under current settled constitutional law, this lawsuit is borderline frivolous. The reason is straightforward. The text of the U.S. Constitution, as amended, states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State,” Amend. XIV § 2; “The enumeration [of these persons] shall be made . . . within every subsequent term of ten years.” Art. I. § 2. (That’s the Census.)  Note that the Constitution does not say, for instance, the whole number of citizens, the whole number of lawful residents, the whole number of adults, or anything of that sort. It says “the whole number of persons” (before the Fourteenth Amendment it said, free persons) and accordingly, every single Census since the dawn of the Republic has counted people in the Census regardless of their citizenship status, eligibility to vote, lawful visa status or lack thereof, etc. This clause is—one might have thought—part of what Sandy Levinson calls the hard-wired constitution of settlement. Counting all “persons” is simply the rule, for better or worse; to argue otherwise is like arguing that someone should be able to be President who is under 35. But Alabama’s claim is that it is an actionable abuse of administrative discretion for the Census Bureau to continue to follow this plain constitutional command. That’s why I call Alabama’s claim bold, wild, and borderline frivolous.  And yet, ignoring this lawsuit might be a big mistake, for reasons I’ll discuss.

Digging into the complaint, the state’s argument uses a combination of gauzy political theory claims and lightly-sourced “original understanding” claims to try to undercut a very clear piece of constitutional text. The complaint’s core argument is basically that “persons” doesn’t mean what one might expect it means, because (a) unlike lawfully present aliens, “illegal aliens” are “not members of the political community constituted by the Constitution,” and (b) in 1789 and/or 1868, when they said “persons,” they actually didn’t mean to include illegal aliens. The only support for (a) in the complaint is a citation on page 21 to something the Court said in District of Columbia v. Heller. The only support for (b) in the complaint is a short stack of highly conclusory assertions buried on pages 23-24, in which it is claimed that the word “inhabitants” in an early draft of the Constitution, later changed to “persons,” referred specifically to a legal status of “inhabitancy,” which in turn “depended upon permission to settle granted by the sovereign nation.” One clue that this may not be exactly a knock-down argument comes from the fact that there were no immigration restrictions in the United States in 1789, or for that matter 1868, when the relevant constitutional text was in fact written, so there was literally nobody who any of these drafters or ratifiers could conceivably have been intending to exclude from the count on grounds of lack of “permission to settle” or for any other reason. In 1789 and 1868 they intended to count, and in fact did count, every immigrant who just got off the boat yesterday from anywhere, a practice that has continued ever since.  But according to the State of Alabama we are to believe that something about the way they intended to count everybody there at the time in 1789 and 1868 means that they intended to exclude from the category of “persons” the not-yet-existent legal category of “illegal aliens.”

This is pretty chutzpadik stuff. But if I have learned anything lately about how constitutional politics works, I have learned that even the wildest argument, with the most gossamer basis in any of the standard modalities of constitutional interpretation, can sometimes move from “off the wall” to “on the wall,” as Jack Balkin says, in short order. (I’m looking at you, activity/inactivity distinction.) Alabama’s claim here is deeply consonant with a certain brand of nativist politics that recently helped elect a President. The state’s claim also has huge and immediate implications in “low politics,” which the complaint explains at length and in extremely specific detail. Basically Alabama is worried that it has done such a good job persuading certain people (or rather, not people, “illegal aliens”) to leave the state that it’s now likely to lose a congressional seat to California. The level of detail the complaint repeatedly lavishes on these political effects at first just seems odd. It greatly exceeds anything that a lawyer might have thought relevant to the question of the state’s injury for standing purposes. But it’s less odd to the extent that this lawsuit is a kind of political document, aimed not at squarely stating a valid constitutional claim but rather at moving our constitutional politics further along in the general direction of excluding some immigrants from the Census and/or from the process of reapportionment and redistricting. The Census Bureau itself may be a defendant whose current leadership is somewhat similarly inclined: The Bureau’s own indefensible last-minute decision to add a citizenship question to the Census is likely to distort the count in a way that nudges it in the general direction Alabama would like.

In the end, this lawsuit is worrying for two reasons. First, what if it settles? Although I think it is vanishingly unlikely that the Bureau would attempt to do the Census Alabama’s way, we do face the unusual and problematic situation where the plaintiff and the (political appointees in charge of) the defendant share a political interest in finding ways to somehow undercut or muddy the Constitution’s clear command. Any settlement terms between these parties would likely do some sort of damage to the constitutional integrity of the count. Second, even if it fails completely as litigation, this lawsuit could help inject into conservative legal culture, and eventually into general American legal culture, the currently-off-the-wall idea that “illegal aliens” are not “persons” for constitutional purposes. That idea is somewhat chilling. But our current system of counting all persons for purposes of representation rests on a foundation in political theory that has become hard for most Americans to grasp. The idea that we need representatives to represent everyone who lives here—child and adult, voter and non-voter, Mayflower descendant and immigrant who arrived yesterday—is an old idea, and one that frankly seemed completely straightforward in both 1789 and 1868. But it’s one that today requires some reinforcement, as I discuss in this just-published essay.

Cross-posted at Balkinization