Donald Trump on Tuesday signed a memorandum directing the U.S. Census Bureau to exclude undocumented immigrants from population totals that determine how many seats in Congress each state gets. It is an unprecedented movement that appears to be an attempt to preserve white political power.
The American Civil Liberties Union immediately said it would file a lawsuit, and the action is likely to meet an avalanche of legal challenges. The Trump administration appears to be on shaky legal ground: The US Constitution requires that seats in Congress be distributed based on the “total number of people” counted in each state during each 10-year census. The constitution gives Congress power over the census (although Congress has designated some of that authority to the executive).
Republicans in recent years have been lobbying to exclude non-citizens and others who are not eligible to vote from the account used to draw constituencies. In 2015, Thomas Hofeller, a leading Republican redistricting expert, explicitly wrote that such a change “would be advantageous to Republicans and non-Hispanic whites.”
The White House memo, titled “Excluding Illegal Aliens from the Distribution Base after the 2020 Census,” argues that the term “person” in the constitution really means “inhabitant” and that the president has the discretion to define what what that means. The memorandum also argues that allowing undocumented people to rewards states with high numbers of undocumented people.
“My administration will not support representation from Congress for foreigners who enter or remain illegally in the country, because doing so would create perverse incentives and undermine our system of government,” Trump said in a statement. “Just as we do not give political power to people who are here temporarily, we must not give political power to people who should not be here at all.”
Nancy Pelosi, the speaker of the House of Representatives, said the House would “vigorously dispute” the order.
“By trying to exclude undocumented immigrants from being counted in the 2020 census, the president is violating the constitution and the rule of law,” Pelosi said in a statement.
The White House interpretation is likely to be strongly questioned in court. Experts have said that the idea of illegal immigration did not exist when the constitution was drafted. Early immigration to the United States was relatively “free and open.” The US Customs and Immigration Service says on its website that the federal government began regulating it in the 19th century.
Steve Jost
(@JostSteve)Here is a 1989 legal opinion from the Bush Justice Department stating that all people must be counted in the Census. William Barr was AAG and head of OLC, and he surely had to pass this opinion on legislation in Congress. https://t.co/O6rfpRCwq6 pic.twitter.com/a2lzu9G8C2
July 21, 2020
“If those are the best arguments they have, they are dead in the water,” said Thomas Wolf, a lawyer for the Brennan Center for Justice who works on census issues. “There is no way to avoid the fundamental command of the constitution, in the clear text of the constitution, to count everyone.”
The legal reason for the memo is so misleading that Wolf said the motivation behind the memo might not be to enact it. He speculated that the Trump administration may be trying to create uncertainty or confusion among immigrants who are already wary of responding to the census.
It is unclear how the Trump administration will exclude undocumented people from the 10-year census, which is currently taking place, and does not ask about citizenship. The decision does not directly affect the daily operations of the ongoing census, which already faces significant challenges due to Covid-19, but is likely to cause more headaches for officials and advocates trying to convince Americans that it is safe to respond to the census after the Trump administration unsuccessfully attempted to add a citizenship question to the census last year, saying the data was necessary to enforce the Voting Rights Act.
The supreme court blocked the question’s appearance in the poll, saying the justification “appears to have been made up.” But advocates said they still faced obstacles in convincing immigrants that it was safe to trust the census, which must maintain the privacy of individual information for 72 years. Many households may have a mixed immigration status, and the efforts of the Trump administration could make those people more afraid to respond. And the administration has directed federal agencies to use existing federal records to determine citizenship status. The Census Bureau has also begun collecting some driver license records to aid in that effort, according to NPR.
There are an estimated 10.5 million unauthorized immigrants in the United States, according to the Pew Research Center. Many Republican-friendly states, such as Texas, Florida, and Georgia, have sizable populations of undocumented immigrants and could be adversely affected by Trump’s order.
“The constitution requires that everyone in the US be counted on the census. President Trump cannot choose, ”said Dale Ho, director of the ACLU voting rights project, who argued the citizenship issue case before the supreme court. “His latest attempt to turn the census into a weapon for an attack on immigrant communities will be unconstitutional. We will see it in court and win again.
In 2016, the supreme court said states were not required to draw districts based solely on the population of eligible voters, who ruled against a group of voters, backed by a prominent conservative strategist, who said the state was forced to do it. The supreme court left an open question as to whether states could choose to draw districts only based on eligible voters. The issue is expected to return to the supreme court in the coming years.
While Republicans argue that counting the entire population at the base of constituencies dilutes the influence of eligible voters, a critical part of American democracy has long been that elected officials must serve approximately the same number of constituents , regardless of whether those voters can vote or not. no.
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