President Trump on Tuesday signed a presidential memorandum directing the Secretary of Commerce to exclude undocumented immigrants from being counted in the 2020 census for the purpose of next year’s congressional apportionment.
“I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant 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,” the memo states.
The apportionment memorandum on “Ensuring American Citizens Receive Proper Representation in Congress” cites the Immigration and Nationality Act as the “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status” for the purposes of reapportionment.
The 435 congressional districts are redistributed every 10 years and apportioned the number of congressional seats each state would have based on its population data derived from census. It also impacts the dispersal of billions of federal dollars that could affect a state’s funding decisions for the next decade.
According to the Constitution, it requires the “enumeration of the population of the United States every 10 years,” but does not explicitly “define which persons must be included for the purposes of apportionment.” However, the memo argues that the Constitution requires the term “persons in each state” to interpret “inhabitants” based on the discretion of the president’s judgment.
The memo instructs Commerce Secretary Wilbur Ross, who oversees the census, to “take all appropriate action, consistent with the Constitution and other applicable law” to discern which respondents are legal or illegal from the final Census 2020 population count. The final report from Secretary Ross is submitted to the president where the “whole number of persons in each State” will determine how many House seats each state will have.
Last year, the Supreme Court blocked the Commerce Department from adding a citizenship question to the 2020 census, ruling the administration’s reasoning seemed “to have been contrived.” A week after the Supreme Court ruling, Trump issued an executive order directing all “executive departments and agencies” to provide the Department of Commerce with all requested government records on citizens and non-citizens for an accurate data population count. The president called the information sharing “vital” in formulating the makeup of the Electoral College and congressional apportionment.
Trump’s memo calls out “one state” that is home to more than 2.2 million illegal immigrants to argue that failure to exclude from being counted would result in an increase in the state’s congressional representation and potentially reward states in “encouraging violations of federal law.”
“States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives,” the memo states. “Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.”
In a statement shortly after signing the memorandum, Trump slammed the “radical left” seeking to “conceal the number of illegal aliens in our country.”
“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,’” Trump said. “But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of American citizens, and I will not stand for it.”
Democrats expressed outraged to the news, with House Speaker Nancy Pelosi (D-CA) characterizing the president’s memo as “violating the constitution and the rule of law” and signaling that she would “vigorously contest” the latest effort to influence the count in court.
“The Constitution is clear: it requires an ‘actual Enumeration’ of the ‘whole numbers of persons’ for the population count and congressional apportionment,” Pelosi said in a statement. “Yet, by seeking to exclude undocumented immigrants from being counted in the 2020 Census, the President is violating the Constitution and the rule of law. The House of Representatives will vigorously contest the President’s unconstitutional and unlawful attempt to impair the Census.”
The House Oversight and Reform Committee quickly scheduled an emergency hearing for next week on the census and is “considering additional steps” in response to Trump’s memo.
Senate Minority Leader Chuck Schumer (D-NY) on Twitter said the memo wasn’t “worth the paper it’s printed on,” adding the move from Trump is “another racially driven attack by a president and administration that wrongly views immigrants as the enemy when they are a vital part of our society.”
According to the Census Bureau, 92 million U.S. households have participated, mostly online, bringing the national self-response rate to 62 percent. The deadline to complete the Census has been moved to October due to the coronavirus pandemic and the latest state population counts are due to the president by December 31, according to federal law.