Things That Matter

Trump Ignores Constitution To Target Undocumented Residents In 2020 Census Once Again

Despite losing his battle to put a citizenship question on the 2020 Census (the case made it all the way to the U.S. Supreme Court), Trump’s attack on undocumented residents isn’t over yet. This time, the president is targeting states who have large undocumented communities by excluding them from Congressional reapportionment. In particular, Trump wants to exclude them from the numbers used to determine how many seats in Congress each state will have for the next 10 years.

It’s a blatant attempt to subvert the constitutional requirement that the census conduct “an actual enumeration” of the “whole number of free persons” in the U.S. There have been legislative and regulatory tweaks over the years to accommodate unusual situations — omitting, say, foreign diplomats and their families in the country at the time of the count — but there is nothing in the Constitution that says people must be citizens to be counted for purposes of reapportionment

Trump targets undocumented residents once again in a new executive order.

Trump issued an executive order that calls for an unprecedented change to the constitutionally mandated count of every person living in the country. His directive instructs the U.S. Census Bureau to not count undocumented immigrants for purposes of apportioning seats in the House of Representatives, targeting states like California, Texas and New York with large communities of residents who lack a legal immigration status.

If enacted, however, the policy could have a seismic political impact, as states can gain or lose seats in the House every 10 years after the census, depending on how their populations compare to others. The census data is also used to allocate federal resources to states and local communities, however, Trump’s order doesn’t target this funding.

Dale Ho, an ACLU attorney who fought against Trump’s proposed citizenship question, signaled that a new lawsuit could be in the works against Tuesday’s directive. 

“The Constitution requires that everyone in the U.S. be counted in the census. President Trump can’t pick and choose. He tried to add a citizenship question to the census and lost in the Supreme Court,” Ho said in statement. “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.”

Congress represents all people in their states – not just citizens.

The U.S. has long counted non-citizens, including undocumented residents, for the purpose of congressional apportionment. The Constitution says that each state must have at least one representative, and that the apportionment of others should be based on an enumeration of the population.

Therefore, Trump’s authority to exclude unauthorized immigrants is expected to face court challenges, as it appears to be a direct attack on the constitution and the 14th Amendment.

Until the 14th Amendment was ratified in the 1860s, enslaved African Americans were counted as three-fifths of a person for congressional apportionment. American Indians “not taxed” were excluded until 1940.

The 14th Amendment also requires the enumeration of “the whole number of persons in each State.”

The new order comes after the Trump administration has repeatedly tried to change the 2020 Census.

Trump’s new order is part of an ongoing effort to exclude undocumented residents, and part of his campaign to fundamentally change how the government conducts its census every 10 years.

Late last year, the Trump administration proposed including a question on U.S. citizenship during the 2020 census. But its efforts do so, which it said were aimed at enforcing the Voting Rights Act of 1965, elicited a flurry of legal challenges that ended up at the Supreme Court, which blocked the administration from adding the question in time for the questionnaires to be printed.

During the litigation over the question, it was revealed that Thomas Hofeller, a now deceased conservative political operative, played a role in helping the administration craft the justification for the citizenship question addition, which he said in a 2015 study would allow officials to draw electoral maps advantageous to “Republicans and Non-Hispanic Whites.”

Trump’s order could have a major impact on several states’ representation in Congress.

Several U.S. states have large undocumented residents populations and many of them regularly vote Democratic. This order, if enacted, would have a major effect on congressional representation and would shift political power away from reliably blue states to reliably red states.

Two of the states losing electoral votes — California and New York — are reliably Democratic. Two states gaining — Alabama and Ohio — usually vote Republican.

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