On Tuesday, President Trump signed a presidential memorandum to exclude undocumented immigrants from being counted by the census for the apportionment of congressional seats.
“I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law,” the order states.
The President’s latest effort to advance his immigration agenda, like other directives preceding it, will end up in court. In 2019, the Supreme Court rejected the administration’s attempt to include a citizenship questions in the census. Notably, during the litigation of this question, it was revealed that Thomas Hofeller, now-deceased conservative political operative, had helped the administration craft the defense for the citizenship question. In a 2015 study, Hofeller said the question would allow officials to draw electoral maps “advantageous to Republicans and Non-Hispanic Whites.”
Groups who fought the citizenship question have signaled that they are preparing to take legal action against the latest directive. These groups include the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund (MALDEF), Asian Americans Advancing Justice, and the state attorney general’s offices in New York and California.
“[Trump’s] latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement.
“No one ceases to be a person because they lack documentation,” New York State Attorney General Letitia James said. “Under the law, every person residing in the U.S. during the census, regardless of status, must be counted.”
Additionally, the House on Oversight and Reform committee has said they are preparing to hold an emergency meeting on the census next week. “The House of Representatives will vigorously contest the President’s unconstitutional and unlawful attempt to impair the Census,” House Speaker Nancy Pelosi, D-Calif., said in a written statement.
U.S. citizens and noncitizens alike, regardless of immigration status, have been included in the country’s official population counts since the first U.S. census in 1790. The Constitution specifies that “persons” residing in the states should be counted every 10 years to determine each state’s share of seats in the House of Representatives.
Until the passage of the 14th Amendment in the 1860s, enslaved African-Americans counted as three-fifths of a person for purposes of congressional apportionment. The 14th Amendment further requires the enumeration of “the whole number of persons in each State.”
“The legal problem is that the 14th Amendment says that representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons. That means House seats are divvied up based on everyone present in the 50 states, not just based on those lawfully present,” Joshua Geltzer of the Georgetown University Law Center explained.
But the administration argues that since “persons” is not defined, President Trump has the “authority to exclude from the apportionment base aliens who are not in a lawful immigration status.” The state of Alabama, in an ongoing federal lawsuit, argues that the framers of the Constitution did not intend for the term “persons” to include immigrants living in the country without authorization. Immigration restrictionist groups like the Federation for American Immigration Reform have tried to exclude undocumented immigrants from the apportionment count as far back as the 1980s. The cases were ultimately dismissed.
But in this case, the authority of the President’s memorandum remains unclear. According to Article 1, Section 2 of the Constitution, it is Congress, not the President, that is to carry out the “actual enumeration” of the country’s population.
What is clear is that, if enacted, the policy could have seismic political and practical implications. For one, U.S. census data is used to allocate federal resources to states and local communities for things like schools, roads, and community projects. States like California, Texas and New York could lose a number of seats in the House.
Additionally, the census is already 62% completed and has cost $16 billion of tax-payer dollars so far. The directive will “[leave] states with inaccurate numbers that will deprive communities of federal assistance to recover from the pandemic,” president and CEO of The Leadership Conference on Civil and Human Rights Vanita Gupta said.
And convincing immigrant communities to participate in the census, especially after the lingering fears left by last year’s attempt to include a citizenship question, has already been an uphill battle. Community organizers and immigrant advocacy groups worry that the announcement threatens to deepen the fear of these communities.
“This is all about trying to suppress the growing political power of the Latino community,” Thomas Saenz, MALDEF’s president and general counsel, said.
Photo: Shutterstock/Maria Dryfhout