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 m