President Trump on Tuesday ordered his administration to exclude immigrants who are in the country illegally by calculating how many seats in Congress each state gets after the current census, a move that critics denounced as unconstitutional and likely to face swift judicial challenge.
The president’s directive, which would adopt a practice never before used in the history of the United States, faces several important obstacles: legal, logistical, and political.
However, if carried out successfully, it could have far-reaching effects by reducing the political influence of states with significant numbers of immigrants, including California and Texas. It could also shift power to whiter, more rural areas of states at the expense of more diverse cities.
The move also provided the latest example of Trump’s acceptance of divisive issues as he slides further behind Joe Biden in presidential race polls. In recent days, Trump has promised to deploy more federal forces in Democrat-led cities, has falsely denounced mail ballots as a source of widespread fraud, and has repeatedly been described as the last line of defense against left-wing radicalism.
Within hours of signing the census directive, the White House also threatened to veto bipartisan legislation to fund the Pentagon because it would require renaming the military bases currently named for Confederate leaders.
It is unknown whether Trump’s small base of conservative voters, mostly rural and white, will unite around that scorched earth policy. Some polls suggest that at a time when the country is reckoning on the deadly coronavirus crisis and resulting economic devastation, some of Trump’s supporters have turned on him for his split.
But the measures signal a focused effort by a president to increase the nation’s tensions, rather than calm them, which is not recent precedent.
“As hundreds of Americans die each day from the COVID-19 virus, and thousands more become infected, President Trump continues to play political games,” said California Secretary of State Alex Padilla, a Democrat.
“Trump’s nativist dog whistle has been turned into a megaphone, and most Americans are tired of the act,” he added.
According to a presidential memorandum released by the White House on Tuesday, census workers would continue to count immigrants who are in the country illegally, but would not be considered in decisions about representation in Congress. The Census Bureau would have five months to find a way to accurately estimate the number of residents illegally in each state to subtract from the general count.
“Respect for the law and protection of the integrity of the democratic process justify the exclusion of illegal aliens from the distribution base,” says the memo.
Trump followed his memorandum with a statement stating that there is “a broader left-wing effort to erode the rights of American citizens.”
“My administration will not support the representation of Congress to foreigners who enter or remain illegally in the country, because to do so would create perverse incentives and undermine our system of government,” he said. “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.”
Illegally excluding immigrants here from the count will likely cost California at least a seat in Congress, perhaps more, demographers say. Texas would also likely lose representation, while states with few immigrants, including Alabama and Montana, would likely win.
Democrats and civil rights organizations criticized Trump’s decision as illegal and damaging.
“This order is not worth the paper it is printed on and will be revoked by the courts,” said a statement by Senator Charles E. Schumer (DN.Y.), the Senate minority leader.
“Trying to put together the Census for political gain is yet another racial attack driven by a president and an administration that mistakenly view immigrants as the enemy, when they are a vital part of our society.”
Michael McDonald, a professor of political science at the University of Florida, doubted that the Commerce Department, which oversees the Census Bureau, could meet Trump’s schedule to quickly develop a methodology to estimate the number of immigrants without legal status in various areas of the country.
“There are so many moving parts here,” he said.
Dan Stein, president of the Federation for United States Immigration Reform, supported Trump’s decision.
“The process of listing illegal aliens in the census for the purpose of redistribution, as it has been practiced for the past few decades, is fundamentally unfair to law-abiding Americans, and the president should be applauded for taking long overdue steps to safeguard their interests and constitutional rights, “he said in a statement.
The Constitution requires a “real enumeration” every 10 years of “all people” in the country, but the president has repeatedly tried to limit who is counted. He is on the side of restrictive immigration groups that have argued that the constitutional language was not intended to include people in the country without legal authorization.
The administration attempted to include a question about citizenship on the census form, a measure that was eventually rejected by the Supreme Court in 2019, with Chief Justice John G. Roberts Jr. ruling that Commerce Secretary Wilbur Ross had not explained Honestly why I was looking to change the census forms. Roberts called the stated reason – a need for information to enforce the Voting Rights Act – “made up.”
Democrats and other critics of the administration said the effort was an attempt to suppress census response rates in states with large immigrant communities.
Advocacy groups remain concerned that publicity about Trump’s push for citizenship has already made millions of immigrants or mixed-status families reluctant to respond to the census.
In addition to the Supreme Court case, Alabama went to court in 2018 seeking to have illegal residents of the US excluded from the census count. Alabama officials argue that doing so would mean that your state would maintain an additional congressional district after the next census that would otherwise go to a state with large numbers of immigrant residents.
More than a dozen states, including California and New York, have opposed Alabama’s effort, which is still pending in federal court.
Officials from Democratic states and immigrant advocacy groups have pledged to oppose Trump’s latest directive as well.
“The Constitution requires that everyone in the US be counted in the census. President Trump cannot choose, “said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, in a statement.
“He tried to add a citizenship question to the census and lost in the Supreme Court. Her latest attempt to put together the census for an attack on immigrant communities will be unconstitutional. We will see it in court and win again.
Trump’s order comes months after the federal government began taking the 2020 census in March. Nearly two-thirds of households across the country have already responded to the survey, which is a key tool in determining how federal funds are distributed.
The Trump administration has asked Congress to grant it an additional four months to complete the 2020 census, blaming the COVID-19 pandemic and the need to delay disclosure in person. In late July, pollsters are expected to start knocking on doors of people who didn’t respond by mail, phone, or online.
