By Howard Hills
Courts at the crossroads of political questions
The allocation of federal voting power among the states that binds the union together is based on the right citizens of states have to cast ballots in elections for representation in Congress and the Electoral College. Representation in the federal government political process is apportioned to the states based on population, as determined by the decennial population census mandated in article I and Article II of the U.S. Constitution.
The federal court ruling reported at the link below (State of New York v. U.S. Department of Commerce) holds that the Trump Administration cannot include a question confirming citizenship status of residents in the states in the 2020 federal census. The legal and political variables at play in this ruling aside, this represents yet another in a line of lower federal court decisions making categorization and status of persons under federal law based on citizenship seem almost like a suspect classification.
More fundamentally, this ruling treating citizenship confirmation as if it were a form of biased government profiling is part of the erosion of traditional recognition that citizenship is the currency of American constitutionalism. While all persons under U.S. jurisdiction have certain rights to due process, the full panoply of rights and powers, as well as limitations on government powers, secures the Constitution’s ordered scheme of liberty for the individual with full and equal rights and duties of national and state citizenship.
The powers of citizenship include voting rights for full and equal representation in the political process of government by consent of the governed, which is secured only for U.S. citizens who are eligible to vote in states of the union. Citizenship truly is the coin of the realm to redeem the rights guaranteed to persons subject to sovereign rule by consent of the governed under Article I and Article II of the Constitution.
Citizenship in Puerto Rico and the territories
In the case of Puerto Rico and the U.S. territories this viral narrative that makes citizenship-based criteria for exercise of federal power a politic taboo deepens the dilemma of permanent political status resolution. Ambiguity breeds ambivalence about the historical and constitutional significance of citizenship as the common denominator of government by consent. That corrosive equivocation enables but does not justify refusal of Congress to recognize that historically the conferral of citizenship in Puerto Rico in 1917 created a permanent political bond leading to statehood.
Congress is not obligated to grant statehood to a U.S. territory, and constitutionally it could change its mind even after incorporating a territory into the union and passing a statehood act. In the modern era the most recently admitted territories were given a choice to complete the transition to statehood or remain a territory with the option of independent nationhood.
Similarly, Congress could act unilaterally and end the future statutory conferral of citizenship based on birth in the territory, including citizenship for children born in the future derived from parents who acquired citizenship based on birth there in the territorial period. Only those born in a state could pass their citizenship to children born there after conferral of statutory citizenship ended.
Since 2/3 of Americans of Puerto Rican descent live in the 50 states, the 3.2 million there and their children born in the territory could join the 6 million ethnic Puerto Ricans in the states, or revert to the status of nationals without citizenship like the people of American Samoa.
All these esoteric legal and political scenarios are far less probable historically for Puerto Rico than completion of the transition to statehood that is already near completion. Puerto Rico is more integrated into the U.S. than any of the 32 territories already admitted as states. The only reason Puerto Rico is not a state is that the federal courts allowed Congress to treat it differently than other large and populous territories with a U.S. citizen body politic and statehood-ready.
In the tradition of the Northwest Ordinance as a founding document of the Republic, conferral of citizenship attached Constitutional rights that lead to attainment of fully equal citizenship through culmination of territorial status in statehood. Historically, statutory birthright citizenship makes the people of a territory part of the American body politic. Statehood is the only way to redeem the promise and meaning of citizenship granted by Congress to all Americans born in a territory under U.S. sovereign rule.
The institutionalized ambiguity and ambivalence about citizenship in the nation as it relates to the remaining territories is the anomaly being exploited by the “Equally American” lobbying organization. Its self-appointed “President” is Neal Weare, who joins William Howard Taft in treating full citizenship with federal voting rights as a commodity that can be selectively imported and exported to Americans outside the states, and separated from the constitutional process for government by consent of the governed under Article I and Article II of the U.S. Constitution.
Taft, of course, was author of the 1922 Balzac ruling separating citizenship in the unincorporated territories from the Constitution as it applies in incorporated territories before Balzac. It is an historic understatement that the fabricated differentiation between incorporated and unincorporated territories is now an anachronism.
So the real issue for the territories is whether they want full and equal citizenship that comes only with statehood. That includes statehood for Puerto Rico, or integration into an existing state for small territories. If integration into a state is offered and rejected, the small territories can remain less than fully democratic client states or seek independence, with or without a treaty of alliance called “free association.”
It is in that context that we can better understand the news report on the 2020 citizenship confirmation and census litigation as it relates to territories.
Another lower court mess for Supreme Court to clean up?
The Washington Post article on NY v. U.S. Dept. of Commerce reviews the bidding on the census citizenship question without addressing territorial impacts.
According to this reporting, the court in this case seemed to be influenced by the fact that the Commerce Department Secretary attributed inclusion of the citizenship question on the census form to the Justice Department, but the Justice Department confirmed that it initiated inclusion of the question at the request of the Commerce Department.
Under the checks and balances and separation of powers principles that are pillars of American constitutional federalism, the internal process through which the Department of Justice endorsed and supported the question is arguably none of the court’s business. There is nothing unconstitutional about another Cabinet Department requesting the Justice Department to initiate an executive action with its endorsement of the constitutional rectitude of that action.
Thus, this ruling appears to be part of the overall trend of judicial hyper-vigilance due to the not surprising and entirely accurate perception by many federal judges that President Trump and his Cabinet officers are not comporting themselves in a manner consistent with longstanding bureaucratic protocols in the Executive Branch. But that does not justify the judges of the judicial branch failing to comport themselves consistent with impartial standards for judicial review.
If this case ends up in the U.S. Supreme Court in may be because the court allowed its ruling to be influenced by political questions, just as Chief Justice Taft did in his 1922 ruling in the Balzac case.
Howard Hills is former counsel in the Executive Office of the President, National Security Council and State Department on territorial affairs. He is author of the book Citizens Without A State.