On Tuesday, Daily Wire Editor-at-Large Josh Hammer — who is also a constitutional attorney specializing in religious liberty — joined “Tipping Point With Liz Wheeler” on One America News Network (OANN) to discuss a Daily Wire op-ed he had written earlier this week about the legal fallout from the U.S. Supreme Court’s census citizenship question decision in Department of Commerce v. New York.
In Department of Commerce, Chief Justice John Roberts joined the Court’s liberal bloc to temporarily enjoin the Trump administration from including the citizenship question on the census. But as Hammer argued in his op-ed, there appears to be an obscure constitutional rationale, buried in the text of the little-used second section of the Fourteenth Amendment, that may actually require the president to include the citizenship question on the census.
Here is the the relevant text of the second section of the Fourteenth Amendment, with emphasis in bolded italics: “But when the right to vote … is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”
Hammer explained to Wheeler why this textual provision is so important for the Trump administration’s continuing efforts to include the citizenship question on the census.
… The Fourteenth Amendment is probably the most frequently invoked amendment for constitutional litigation, in general, but probably … 97% to 98% of that litigation is in Section 1 of the Fourteenth Amendment. There are actually five sections. Section 1 involves all the clauses that people are familiar with: It’s the Equal Protection Clause, the Due Process Clause — all the clauses that you hear about. …
But there’s actually five sections and Section 2 is just as legally effective as Section 1, by definition … and what Section 2 of the Fourteenth Amendment very clearly says is that when a state abridges the right to vote for a certain subset of male, 21-year-old citizens, then there’s a penalty for that. You can’t do that, and … the formula for the penalty is that you have reduced representation in Congress from the next census. And the formula for determining that reduced representation is a fraction, where both [numbers] require citizen-by-citizen data. … Essentially, your representation is reduced by the proportion of who is is denied this right to vote — male 21-year-old citizens [who have their vote abridged] divided by the total number of male 21-year up citizens. …
[F]rom a very plain English standpoint, … the Constitution literally says that we need to know if there are 21-year-old male citizens in a state who are having their right to vote abridged, and it is the word “shall” that is used. In lawyer world, the word “shall” means the same thing that it means in plain English world: It is a direct affirmative mandate. This is not like a wishy-washy m-a-y “may,” it is “shall.”
From a constitutional perspective, then, “we literally need to know the number of citizens in each state for possible penalization of a state for abridging the right to vote for its male 21-year-old citizens,” he continued.
Hammer concluded his thoughts to Wheeler by discussing what the next legal steps for the Trump administration should be. Hammer urged that President Trump issue a straightforward executive order that unilaterally invokes the second section of the Fourteenth Amendment as justifying — indeed, mandating — the inclusion of the citizenship question on the census.
I mean the words are very clear. The word “shall” means “shall”: It is an affirmative obligation that the federal government have this data. So what Trump should do is actually very straightforward. I hope his lawyers are watching this. All you need to do is issue an executive order literally invoking Section 2 of the Fourteenth Amendment and saying that, “Pursuant to the constitutional authority vested in me, I, President Donald Trump, hereby require that citizenship data be include in the next census.” It’s really that simple.