The president’s guidance presents a not-unsurprising divergence from the U.S. Census’s 200-year history.
On Tuesday, President Donald Trump signed and released an executive memorandum to exclude undocumented immigrants from census counts used to apportion congressional districts.
“I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrants 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,” Trump’s order states.
The memorandum is the latest attempt by the Trump administration to restructure the U.S. Census, especially as it pertains to immigrants.
The American Civil Liberties Union has already announced its intent to file a lawsuit to block Trump’s order from taking effect.
“[Trump’s] latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional,” said ACLU Voting Rights Project Director Dale Ho. “We’ll see him in court, and win, again.”
CNN notes that President Trump has repeatedly tried to change the census to advance his anti-immigrant agenda. However, Trump’s orders, reforms, and proposed guidance have been continuously discarded or limited.
In 2019, for instance, the U.S. Supreme Court blocked Trump from requiring the census to ask respondents whether they were citizens.
“The Trump administration’s action today is even more clearly unconstitutional, as they seek not just to chill participation from noncitizens, but literally to remove them from the final numbers,” immigrant advocacy organization CASA said in a statement. “CASA will win fight this in court and ensure that everyone is counted in the 2020 Census.”
Joshua Geltzer of the Georgetown University Law Center suggested that President Trump is attempting to fundamentally change the census’s intent by only counting legal residents in and for the apportionment of congressional districts.
“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,” Geltzer told CNN. “That means House seats are divvied up based on everyone present in the 50 states, not just based on those lawfully present.”
Geltzer pointed out another gaping problem in Trump’s memo: because the census does not currently ask whether respondents are citizens, the administration would have no practical way to adhere to the memorandum’s directive.
“Presumably the Trump administration will have to rely on a hodgepodge of other records to guess the population they intend to use for apportionment,” Geltzer said.
Legislators from both major parties echoed Geltzer, noting that Trump’s order is novel—and unwelcome—in its application.
“By excluding undocumented immigrants from apportionment or redistricting, this administration departs from more than two centuries of practice and constitutional understanding,” said House Oversight Committee Chairwoman Carolyn Maloney (D-NY) on Monday.
Similarly, Sens. Jerry Moran (R-KS) and Jeanne Shaheen (D-NH) wrote a letter to Census Director Steven Dillingham, requesting that the 2020 Census and its processing be “free from political interference.”
“It is imperative for the Census to count every person in the United States, where they live, and this includes communities that for various reasons have historically had low participation in decennial censuses,” the senators wrote.