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17 things Biden signed on his first day

Discussion in 'GatorNana's Too Hot for Swamp Gas' started by channingcrowderhungry, Jan 20, 2021.

  1. Gatorhead

    Gatorhead GC Hall of Fame

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    Hi phat !

    On the surface your post makes perfect sense.
    I am not polished enough to give you the precise definition but I understand that the constitutions take on the issue is not so "clear cut".

    Perhaps one of our constitutional scholars could weigh in?

    (phat - I was late you guys are already addressing it!)
     
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  2. g8rjd

    g8rjd GC Hall of Fame

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    It returns to the meaning of “persons,” throughout the Constitution, which is consistently used when referring to all non-visitors present. “Person” is the same language used in the Fifth and Fourteenth Amendments, which the Court has held entitle illegal or undocumented aliens to immigration hearings that meet due process standards. See, e.g., Plyler v. Doe, 457 U.S. 202, 210 (1982) ("Whatever his status under the immigration laws, an alien is surely a 'person' in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process of law by the Fifth and Fourteenth Amendments.").

    While the manner of enumeration is determined by law, and Congress has delegated that, neither Congress nor the Executive can engage in the census in a manner that contradicts the constitution, such as by intentionally excluding “persons” living in the United States.
     
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  3. phatGator

    phatGator GC Hall of Fame

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    I understand. Then how can visitors be excluded, as in the census instructions? As far as I can see, the Constitution says nothing about longevity or intention of habitation; it only says to count the people in a state.
     
  4. g8rjd

    g8rjd GC Hall of Fame

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    Because temporary visitors to the United States, by their very nature as admittedly temporary, are not really part of a state’s “Number.” Nevertheless, I’m not aware of a case where international visitors sought to be included or complained about being excluded from the census to determine their congressional representation. If that were to arise, that would be a much closer question and Congress would likely be under better footing for exclusion “by law” (or via their delegation to the executive). This is because Congress does get deference from the Court under those much closer questions when the manner is determined by law. Congress would also have a strong argument that a temporary visitor does not serve the purpose of establishing proportion of representation, while there is a long history in the case law, based on the text of the Enumeration Clause, that all persons who are not temporary within a state are still represented by their congressional delegation even if they are not citizens.
     
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  5. phatGator

    phatGator GC Hall of Fame

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    That makes sense. I guess the SC would have to interpret who the framers intended to count, since it's outside the specific language.
     
  6. gator_lawyer

    gator_lawyer Premium Member

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    The constitutional analysis in this case basically answers that question:
    Franklin v. Massassachusetts., 505 U.S. 788 (1992).
     
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  7. Emmitto

    Emmitto GC Hall of Fame

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    Yes! Which is where I find the intrigue.

    Not to divert into a less focused general Constitutional argument, but this is a sitch that IMO clearly supports the idea that the document is purposely vague. Or, to put it t another way, made to be applicable to new/changing conditions. Why wouldn’t it be? Didn’t they assume it would be relevant for...ever? And were they not aware enough to realize that things change, and not just a little? I think both of those are obvious.

    And were they not aware of the concepts of citizens versus “others.” In fact, who would ever in the history of this country be MORE KEENLY aware than these writers? The exact notion appears in Article II.

    So why, if it were meant to be citizens only, is that same wording not used?

    As for the “visitor” rule, and as mentioned by another poster, it is a rule that at least so far is without controversy. No reasonable person would make an argument against it. Although I suppose someone could philosophically make the same argument I am but just make it a parsing of words. But there is also canon that forbids “absurd outcomes”, which I believe saying that per se temporary “residents” must be counted as population per the Constitution would be. Some SCOTUS judge would wax poetic with an analogy of Tennessee becoming the most populous state via free Dollywood passes.
     
    Last edited: Jan 21, 2021
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  8. gator_lawyer

    gator_lawyer Premium Member

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    Funny story, originalism allows the Constitution to evolve with the times. It just happens to do so only where that evolution furthers Republican political principles. See D.C. v. Heller.
     
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  9. g8rjd

    g8rjd GC Hall of Fame

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  10. PerSeGator

    PerSeGator GC Hall of Fame

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    We've been using the usual residence criteria since the 1790 census. It's literally one of the first laws ever passed. There's not really any doubt about what the founders intended.
     
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  11. channingcrowderhungry

    channingcrowderhungry Premium Member

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    I've has a beer with @phatGator and I can assure you, he is as bad a person as you think!,
     
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  12. archigator_96

    archigator_96 GC Legend

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    So let's say I'm vacationing at Disney from Spain (during a census taking year). I'm not thinking "hey, I better fill out that US census form so I can be counted".
    What people seem to forget is the Census is not a requirement. Nobody forces you to fill it out. It might be in your and your state's best interest but you can skip it if you want.
     
  13. g8rjd

    g8rjd GC Hall of Fame

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    That is incorrect. Responding to the census and responding accurately are required by law.

    13 U.S. Code § 221 - Refusal or neglect to answer questions; false answers
     
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  14. archigator_96

    archigator_96 GC Legend

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    OK, my bad based on how it comes in the mail.

    So are vacationers going to Disney from Spain also required by law to fill it out if they happen to be here during a census year?

    If so, then all immigrants (legal or not) are also required to fill it out. If the visitors are not required, then why would the illegal immigrants be required? They are just visiting - but for a much longer time.

    If it is optional for visitors, then I suppose it is optional for the immigrants as well.
     
  15. g8rjd

    g8rjd GC Hall of Fame

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    No. As gatorlawyer cited above, a visitor is not an “inhabitant” under the Enumeration Clause because, by their very nature, their presence is temporary and they do not “inhabit” the United States. An undocumented immigrant is still an inhabitant and a person within the meaning of the Constitution and the Enumeration Clause.
     
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  16. vaxcardinal

    vaxcardinal GC Hall of Fame

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    So Mexico was going to pay for the wall when it’s done. How are we suppose to get our money on a partially completed wall?
     
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