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Donald Trump’s new memorandum to exclude undocumented immigrants from the next round of congressional distribution is morally repulsive, illegal and impossible. It is repulsive because it borrows the logic of the notorious three-fifths clause to declare that undocumented immigrants are not complete “persons” under the Constitution. It is illegal because it seeks to exclude these immigrants from the population of a state by counting how many seats each state gets in the House of Representatives, which violates the Constitution. And it’s impossible because there is no way the government can accurately count undocumented immigrants before the December deadline.
Neither of these problems will prevent Trump from trying to manipulate the census to strip the House seats of states with large undocumented populations. However, even if this scheme fails, the memo will do insidious damage to the fundamental principle that all people count. Trump has formally endorsed the notion of excluding non-citizens from the redistricting process, an idea that the red states are already exploring to increase the electoral power of white rural voters at the expense of various urban centers.
The Trump census order, released Tuesday, is not actually an order, but a “memorandum” announcing “the politics of the United States” (ie, the Trump administration). Try to return to the pre-Civil War practice of diminishing the constitutional personality of certain residents. Originally, the Constitution counted enslaved people as three fifths of a person when distributing the seats of the Chamber. The 14th The amendment repealed this three-fifth clause by declaring that the representatives “shall be distributed among the various states according to their respective numbers, counting the total number of people in each state, excluding non-taxable Indians.” The seats in the house would now be distributed based on the “people” living in each state. There would be no more degrading distinctions on the basis of legal status. Since then, Congress has counted all the “people,” that is, the “inhabitants” of a state, another term used in 14th Amendment.
Trump wants to disrupt this historic practice by decreeing that undocumented immigrants are not “people” under the age of 14.th Amendment. In other words, she wants to import the racist logic of Clause Three-Fifths into an amendment designed to abolish that principle. On what legal basis? Trump offers two arguments.
First, it equates undocumented immigrants with diplomats, tourists, and entrepreneurs. Because these people only visit the United States, they are not considered “inhabitants” and are therefore excluded from the census. But a large majority of undocumented immigrants cannot be considered foreign tourists on a temporary excursion through the United States. They live here, take root, and often raise children who are citizens. They are members of their communities with an established presence in the country. Discarding them as non-inhabitants – and, by extension, not as “whole … people” – would go against the 14th Amendment.
Second, Trump presents a policy argument barely disguised as a legal claim. “Increasing representation in Congress based on the presence of foreigners who are not in a state of legal immigration,” says his memorandum, “would create perverse incentives that encourage violations of federal law.” States that adopt so-called sanctuary laws to protect undocumented immigrants “should not be rewarded with increased representation in the House of Representatives.” And excluding these immigrants from the census “is more in line with the principles of representative democracy,” because states with more citizens deserve more “formal political influence.”
This logic transforms a constitutional command into a partisan manipulation tool. In Trump’s opinion, the executive decides who is and who is not a “person” based on the “principles of representative democracy.” If certain people deserve less “political influence,” they can be excluded from the count with a wave of the president’s magic wand. In addition, the executive can punish states that pass laws they don’t like by refusing to count some of their residents, reducing their representation in Congress. This point of view is not the law, or anything like it. No court has allowed the government to exclude an entire class of inhabitants from the census based on a president’s idiosyncratic conception of who a “person” is.
This logic transforms a constitutional command into a partisan tool. handling.
However, an even bigger logistical problem looms over this effort: The government doesn’t know how many undocumented immigrants live in each state and has no way of finding out. Trump notoriously tried to count non-citizens in the 2020 census, but the Supreme Court blocked the question. He then tried to count non-citizens using existing records, but the process has failed: Only four states have released citizenship data to the federal government. And states don’t track the number of undocumented immigrants within his borders, so even if Trump could count all non-citizens, he couldn’t identify which ones are allowed to live here. By law, Trump must deliver census distribution data to Congress within a week of January 3, 2021. How do you plan to submit nonexistent citizenship data in less than six months? The memo does not explain.
And this is where things get complicated. The Constitution gives Congress power over the Congress census and distribution. Congress has delegated most of those responsibilities to the executive branch. Under current law, the president reports census distribution data to Congress, then the secretary or sergeant-at-arms of the House of Representatives certifies the information and sends it to state governors. Presuming that Democrats retain control of the House, President Nancy Pelosi could direct the secretary or sergeant-at-arms no to certify Trump’s data. And if Joe Biden defeats Trump, he could withdraw the Trump report and replace it with an accurate and constitutional tally.
However, before this possible confrontation, the Trump administration will be sued. States with large undocumented populations like California, which the president is trying to punish by reducing their representation in Congress, are likely to join the legal backlog. It seems unlikely that the same Supreme Court that blocked the citizenship census issue now allows the Trump administration to fabricate data to promote unconstitutional casting. In fact, this entire operation reeks of the “arbitrary” and “capricious” type of executive action that federal law prohibits.
Despite these strong odds that Trump’s plan will fail, it does spawn an inevitable and monumental legal battle just around the corner. For decades, states have drawn districts based on the general population. But now, as they prepare for another round of redistricting in 2021, red states like Texas are considering how they can take power away from cities and communities of color. Once the House seats are distributed, states can draw the lines for their Congressional districts. They also draw districts for their own legislatures. And some state lawmakers are eager to draw these districts by counting the citizensNo people. This method would transfer power from various urban regions to white rural areas, reinforcing republican power in Congress and state legislatures. The Supreme Court declined to say whether the redistribution of districts on the basis of the citizen population is unconstitutional, although it obviously is.
Trump, then, is essentially firing the first shot of this impending battle. It has thrown the weight of the executive power behind the basic proposal that only citizens deserve political representation. And it has sent a message to its political allies in the states to pursue its own efforts to strip immigrants, and the communities that host them, of political power. Even if Trump loses this fight over the cast, the war over who counts in America is really beginning.
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