Originally Published in The Hill
Brett Samuels and Rafael Bernal - July 21, 2020
The order, which immediately prompted legal challenges, amounts to something of a workaround for Trump after the Supreme Court last year blocked the administration from adding a citizenship question to the decennial survey.
The rationale for the memo rests on the argument that the president has final say over transmitting the final census report to Congress and that the Constitution does not explicitly define which persons must be included in determining apportionment.
"The discretion delegated to the executive branch to determine who qualifies as an 'inhabitant' includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status," the order states. "Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.
The order implicitly calls out California — a state represented overwhelmingly by Democrats in Congress — in making the argument for discounting undocumented immigrants, noting that "one State is home to more than 2.2 million illegal aliens."
"Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated," the order states.
In a statement, Trump framed the memo as an effort to push back on "the radical left," an indication he believes it will appeal to his base of supporters ahead of November's election.
"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 Americans citizens, and I will not stand for it."
Rep. Tony Cárdenas (D-Calif.), head of the Congressional Hispanic Caucus's campaign arm, called Trump a racist and said the order is a distraction.
“Trump’s strategy to scare immigrants from taking part in the Census is unlawful; it will not stand in the courts and he knows it. This executive order is the action of a racist, misguided, and troubled president who continues to make unconstitutional attacks on hard-working immigrants in this country to distract from his failure as a leader," said Cárdenas.
It's unclear how the Trump administration would discern each respondent's citizenship or immigration status as there is no citizenship question included in the 2020 census. The president last year directed federal agencies to collect and submit data to the Commerce Department on citizens and noncitizens in the United States and signaled that information would be used to help determine the census count.
"If they use questionable social science data techniques you're likely to have additional legal challenges," said Michael Kagan, director of the Immigration Clinic at the University of Nevada-Las Vegas. Kagan pointed out that the use of sampling and other social science methods to reinforce Census numbers was struck down by the Supreme Court in a landmark 1999 case.
Trump in an executive order last year, following the Supreme Court's ruling on the citizenship question, ordered federal agencies to share all available information with the Commerce Department – which runs the Census – to discern which respondents are legally in the country and which are not.
That order specifically mentions the Department of Homeland Security (DHS) and its files of visa and green card holders as well as naturalizations, entry and exit records; the State Department's passport and refugee records; and the records of social services like Medicaid and the Social Security Administration.
"The Census Bureau has been collecting records from departments and agencies. Those records should provide a basis for identifying illegal aliens," a White House official told The Hill.
Tuesday's order drew swift reactions from other lawmakers and advocacy groups that, amid the coronavirus pandemic, were already concerned about minority groups being undercounted in the census and consequently affecting the apportionment of representation and resources for years to come.
“The Constitution requires that everyone in the U.S. be counted in the census. President Trump can’t pick and choose," Dale Ho, director of the American Civil Liberties Union Voting Rights Project, said in a statement. "
"He tried to add a citizenship question to the census and lost in the Supreme Court," Ho continued. "His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.”
Rep. Gil Cisneros (D-Calif.) said Trump's order is an attempt to depress minority participation in the Census.
“Instead of working to stop the spread of the coronavirus, President Trump is putting his energy into undermining the U.S. Census. This executive order is another blatant, backward attempt to depress the number of individuals who could participate in constitutionally-mandated population count. After the Supreme Court blocked him from adding a citizenship question to the 2020 Census, the President is trying to unlawfully sidestep their ruling,” said Cisneros.
The Trump administration previously attempted to add a citizenship question to the 2020 census, but Trump dropped the bid to do so after the Supreme Court decision, which said the administration's reasoning was "contrived."
This approach differs from the citizenship question in that it openly seeks to bar a particular group from being counted in the census.
During debate on the citizenship question, Trump administration officials vehemently denied accusations that it was intended to discourage participation by foreign nationals, despite accusations to that effect from its opponents.
"It's a direct focused attack on political power. It would be reducing the political representation of America's most diverse states," said Kagan, one of the plaintiffs in the case that blocked the citizenship question.
The new policy takes aim solely at the Census's apportionment effects, but ignores its budgetary effects — funding from federal programs is in large part assigned according to Census data.
If undocumented immigrants were successfully excluded from the census, California — with its more than 2 million undocumented residents — would bear the brunt of representational effects.
But red states like Texas and Georgia — home to 1.6 million and 400,000 undocumented residents, respectively — would also be hard-hit, potentially losing seats in Congress.
Some administration allies cheered the move. Dan Stein, head of the Federation for American Immigration Reform, a group that advocates for restricting legal and illegal immigration, called the memo "an honest attempt" to ensure every citizen and legal immigrant receives "full and fair representation."
The order is the first in what is expected to be a string of unilateral actions by Trump in the coming weeks. Chief of staff Mark Meadows teased earlier this month that Trump was preparing orders related to immigration, manufacturing and other issues, though he would not elaborate.
Trump has said he is readying an order that would emphasize merit-based immigration, but he has fueled confusion by suggesting the action would also address the Dreamers protected under the Deferred Action for Childhood Arrivals (DACA) program as well. White House aides have disputed that DACA will be covered by the executive order.
The administration is widely expected to try for a second time to rescind DACA after the Supreme Court rejected its first attempt but did not dispute the president's right to end the program.