The fourteenth amendment to the Constitution establishes that “the representatives will be distributed among the various states according to their respective numbers, counting the total number of people in each state, excluding unencumbered Indians.”
This text is unequivocal. With a narrow exception for some Native Americans, everyone within the United States must be counted on the 10-year census. And all people must be counted when representation is assigned to states in the House of Representatives.
However, on Tuesday, President Trump issued an extraordinary memorandum suggesting that he can decide who counts as a “person,” and that undocumented immigrants do not qualify.
The memo refers to who should be counted when assigning representatives to states after the 2020 census. Trump states that “for the purpose of reassigning Representatives after the 2020 census, it is the policy of the United States to exclude from the distribution base to foreigners who are not in a state of legal immigration. ” Therefore, if Trump’s opinion prevailed, an opinion that is at odds with the explicit text of the Constitution, undocumented immigrants would not be counted.
The implications of this unconstitutional policy are significant. An estimated 10.6 million undocumented immigrants live in the United States, but they are not evenly distributed across states. Almost 20 percent live in California. If Trump effectively overturns a 14th Amendment provision, the nation’s largest blue state could lose up to three House seats.
Trump’s memo is based on the thinnest legal justification
Trump cites a handful of sources to justify his attempt to neutralize a constitutional requirement, including a federal statute that states that “the President will transmit to Congress a statement showing the total number of people in each State” after the census is completed, and a Supreme Court Decision stating that this statute gives the president some discretionary authority over how the census is conducted.
Quoting the Supreme Court decision in Franklin v. Massachusetts (1992), the Trump memorandum argues that “Congress has stipulated that it is ‘the President’s personal transmission of the report to Congress’ that ‘establishes the distribution’ of Representatives among the States, and the President’s discretion to resolve the distribution it is more than ‘ceremonial or ministerial’ and is essential ‘to the integrity of the process.’ “
Trump is right that Franklin Read federal law to give the president some authority over how the census is conducted. The president’s “duties” regarding the census, according to Franklin, “They are not merely ceremonial or ministerial.” Instead, the president may exercise “his usual supervisory powers over his executive officers” who conduct the census.
But just because Trump has some discretionary authority over census officials doesn’t mean he is free to violate the Constitution. Even if federal law gave Trump the power to ignore the 14th Amendment, that law would be unconstitutional.
However, without citing any legal authority, Trump’s memo states that he must be allowed to determine what the 14th Amendment means.
“Although the Constitution requires that ‘people in every state, excluding unencumbered Indians,’ be listed in the census,” says Trump, “that requirement has never been understood to include every physically present individual in the distribution base. within the limits of a State at the time of the census. “
As Trump correctly points out, there are many people who may be present in the United States, tourists visiting other nations, foreign diplomats, businessmen, for example, who are not counted in the decennial census. “The term” people in each state “has been interpreted to mean that only the ‘inhabitants’ of each state should be included,” argues Trump, and “determining which people should be considered ‘inhabitants’ for the purpose of sharing requires the exercise of judgement “.
But Trump claims that he is the one who can do this “exercise of judgment,” and that his judgment is indeed limitless. Again, Trump does not cite any legal authority for the proposition that he can make this judgment, or for the proposition that an undocumented person residing permanently within a state is not an “inhabitant” of that state.
As Aaron Reichlin-Melnick, political adviser to the United States Immigration Council, told me: “The average undocumented immigrant has been present in the United States for more than 15 years, according to Pew Research.” It is, to say the least, an unusual reading of the word “inhabitant” to suggest that someone who has lived in a place for so long is similar to a tourist.
The Constitution itself does not consider immigration status when determining who counts as a “person” for the purposes of the 14th Amendment. According to Reichlin-Melnick, “the Supreme Court has made it clear that the term ‘people’ in the 14th Amendment is not limited by citizenship status” for more than a century.
Furthermore, the idea of an illegally present immigrant simply did not exist when Amendment 14 was ratified in 1868. The first United States law that purported to exclude some non-citizens of the United States was the Page Act of 1875, a racist law who sought to exclude Chinese women.
The concept of an undocumented immigrant grew out of similar efforts to exclude Chinese citizens. According to Margaret Hu, a professor of immigration law at Washington and Lee Law School, the United States created its first “document-based immigration system” as part of a broad effort to exclude Chinese from this country.
But these racist policies did not become law until years after ratification of the 14th Amendment. And if Trump really had the power to determine who counts as a person under the amendment, the implications of that power would be impressive. Under this logic, Trump could decree that younger voters, or Democrats, or anyone who has previously attended an Obama rally is not a “person” for the purpose of assigning House representation.
After all, there is as much language in the Constitution that supports the proposition that Obama’s supporters are not “people” as there is language that suggests undocumented immigrants don’t count.
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