Originally Published in Politico
Anita Kumar - July 21, 2020
Trump moved Tuesday to bar undocumented immigrants from being counted in the census, which determines each state's representation in Congress.
President Donald Trump wants to ban undocumented immigrants from being counted in the 2020 census.
That's not all he's doing on immigration in 2020.
In recent months, Trump has moved to reduce the number of foreign workers in the U.S., end a program that protects children brought to the country illegally, build more than 450 miles of a wall along the southern border and sharply limit the granting of asylum claims.
Each move has pitted Trump against powerful opponents, everyone from civil rights activists to local officials to business leaders, and opened the president to numerous legal challenges. But each time, the action has also riled up Trump's most ardent supporters, a key goal with Trump's poll numbers slipping against presumptive 2020 rival Joe Biden.
Trump's most recent move targeting immigrants came Tuesday, when he signed a memorandum effectively asking the Commerce Department, which oversees the census, to collect data on undocumented immigrants — but only so Trump can remove that data from population totals in the final census count. The census is used to determine how many House members each state gets, as well as how federal funds are distributed. The memo argued it is "the President's discretion to settle the apportionment" of House members.
Like many of Trump's unilateral actions on immigration, Tuesday's announcement was quickly declared illegal by activist groups and decried by Trump's opponents as a simple attempt to intimidate immigrants.
Civil rights groups and state and city officials warned that the move would decrease census participation among all immigrants, diminishing their political power and jeopardizing federal funding in mostly Democratic-leaning areas. Currently, census data is used to help disburse $1.5 trillion in federal funds. The 2020 census will also determine how to redraw House districts, a process that occurs once every 10 years.
"This latest action by the administration to exclude undocumented immigrants when determining representation in Congress, rooted in racism and xenophobia, is a blatant attack on our institutions and our neighbors,” said California Gov. Gavin Newsom, a Democrat.
"We’ll see him in court, and win, again," said Dale Ho, director of the American Civil Liberties Union's Voting Rights Project, which challenged the citizenship question.
Trump, however, may get the political benefit he wants from his immigration actions regardless of whether he wins or loses in court. Any challenge over Tuesday's census action could take months to untangle. Trump is also facing a legal challenge from several prominent business groups, including the Chamber of Commerce, over his recent order barring most categories of foreign workers from the U.S. during coronavirus pandemic. Yet the timeline on that case is similarly unclear.
In the meantime, Trump's most avid backers were quick to praise his latest immigration move.
Rep. Paul Gosar (R-Ariz.) described the new policy as “common sense and constitutional” policy. “The constitutional concept of one person, one vote and the basic rights of citizenship are shredded when states create policies that encourage illegal aliens,” he tweeted.
It’s another sign that Trump, struggling in the polls amid the still escalating pandemic, is pegging his 2020 reelection hopes to immigration, just like he did in 2016, when chants of "Build that wall" and promises to deport millions of migrants who arrived in the country illegally were regular fixtures at Trump rallies.
“Trump only cares about one thing: power,” said Frank Sharry, executive director of America’s Voice, an immigration advocacy group. “To keep it, he believes that he must pit his supporters against all others in a zero-sum death match.”
On the other side, Alabama Attorney General Steve Marshall is already arguing in an existing lawsuit against the Census Bureau that undocumented immigrants should not be counted in the census.
“When the states’ congressional seats and electoral college votes are divided up, representation should be based on those people who reside in their states and this country lawfully,” Marshall said.
But the National Immigration Forum, an immigration advocacy group, estimated that Trump’s memo could end up hurting Republican-leaning states that have had disproportionately large increases in immigrant populations.
Eight of the 10 states with the greatest percentage increases in immigrant population from 2010 to 2016 voted for Trump in 2016, according to the group.
“There’s an assumption that an undercount of immigrant populations will negatively impact blue states, but the reality is that rural communities and red states will also be underrepresented and underfunded,” said Jacinta Ma, the group's vice president of policy and advocacy. “Today's memorandum will undermine their future success.”
Several experts said Tuesday it’s unlikely Trump’s memo turns into real policy this year for both practical and legal reasons.
“There is no federal record of undocumented immigrants by census block or even by state,” said Ruth Greenwood, co-director for voting rights and redistricting at the Campaign Legal Center. “There are ways you can guesstimate it. But that's not what the census calls for, right? The Constitution calls for an actual enumeration.”
Justin Levitt, a law professor at Loyola Law School, said the 14th Amendment dictates that the “whole number of persons in each state” should be counted.
“In order to believe that unquestionable residents — people who live here, whatever the legal status of them living here, people who are physically here and living here — are not whole persons within each state, you have to think they’re not persons," Levitt said. "And that’s not an available choice.”
Besides, Levitt argued, Congress has the final say.
“Congress has given leaps and bounds of discretion to the president and to the secretary of Commerce, in lots of different arenas having to do with the conduct of the census," he said. "But the one place, and this is abundantly clear, that Congress has not given discretion on is what you're supposed to be counting."
On Capitol Hill, Democrats expressed outrage. The House Oversight Committee immediately scheduled an emergency meeting for next week to discuss the president's memo.
"Taking this step right in the middle of the ongoing census is particularly egregious and sinister because it appears purposefully designed to depress the count, deter people from filling out their forms and corrupt the democratic processes on which our nation is founded," said Rep. Carolyn Maloney (N.Y.), the committee's chair.
Senate Minority Leader Chuck Schumer called it "yet 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." And House Speaker Nancy Pelosi said the administration is “fanning the flames of hatred and xenophobia, tearing countless families apart and challenging our bedrock values of equality and justice for all.
Zach Montellaro and Carla Marinucci contributed to this report.