WASHINGTON (CN) — While the current head of the U.S. Census Bureau deflected direct questioning on the move’s legality, four of his predecessors were in unison Wednesday that President Donald Trump’s order excluding undocumented immigrants from the 2020 census apportionment count is unconstitutional.
“They are in a different position than I’m in. I respect them greatly,” Census Bureau Director Steven Dillingham told the House Oversight Committee.
“We do abide by court decisions in controlling law, so we will have to wait and see how that legal debate comes out,” the political appointee added, referring to several lawsuits challenging the memo Trump issued last week.
Apportionment involves divvying up the 435 seats in the House of Representatives based on the decennial population count. On July 21, for the first time in the history of the United States, Trump ordered Commerce Secretary Wilbur Ross to bar undocumented immigrants from the count.
For four of Dillingham’s predecessors, stretching back decades, the move is a clear violation of the 14th Amendment mandate that congressional seats be determined by “counting the whole number of persons in each state.”
“We have never done it,” Kenneth Prewitt, who served as director of the Census Bureau from 1998 to 2001, told the committee on Wednesday.
John H. Thompson, the Census Bureau director from 2013 to 2017, later added: “They wouldn’t even have the ability to try to ascertain someone’s legal status.”
Excluding undocumented immigrants from the 2020 count would cost California, Florida and Texas one House seat each, according to the Pew Research Center, while Alabama, Minnesota and Ohio would hold onto seats otherwise lost under the traditional population count.
Even if the move does not hold up, Democrats say it is one more way that Trump is tainting the results of hard-to-count communities, as both citizens and noncitizens could be driven to not respond based on fears their data will be used against them.
“For a crowd that talks about originalism — well the language is clear,” Representative Gerry Connolly of Virginia said Wednesday. “It says ‘persons.’ It doesn’t say citizens — it says ‘persons.’”
Nearly 63% of Americans have responded to the census, the majority of households filling out their forms online, a method launched in 2020. Delayed by the coronavirus outbreak, local census offices are now reopening to begin door-to-door follow-ups with unresponsive households.
Republicans relied on testimony from a single witness to defend the constitutionality of Trump’s memo.
Law professor John Eastman warned apportionment counts with undocumented immigrants would shift congressional seats away from the rural states.
“And it would debase the votes of American citizens in large portions of the country,” said Eastman, a professor from Dale E. Fowler School of Law at Chapman University.
Dillingham meanwhile sought to reassure the Democrat-controlled committee that the census would count every resident.
“Operations are not affected by the memorandum,” the census director said. “We remain committed to counting every person, in the right place and only once.”
So that the Census Bureau can comply with the order to create a new tabulation for undocumented immigrants, the census director added that Secretary Ross has formed a taskforce to gather federal and state data.
“That process is just beginning,” Dillingham said.
Asked by Committee Chairwoman Carolyn B. Maloney if the bureau will share reports from the taskforce with the committee, Dillingham replied: “There have been no reports. There are no draft reports. But they have previous experience in this area.”
Some GOP members insisted Wednesday that the law is on Trump’s side.
“Including illegal immigrants in the count for representation in Congress only dilutes the representation of all Americans who vote in elections and makes a mockery of our basic principle of ‘one person, one vote,’” said Republican Representative James Comer of Kentucky.
Former census directors cautioned meanwhile that data on the books does not allow for the clear delineation between citizens and noncitizens sought by Trump.
“‘To produce a good number, you need to be able to draw a clear line between those two categories … but that sharp definition doesn’t exist’ in the administrative records available to the Census Bureau,’” Prewitt said, quoting the founder of the Census Bureau’s administrative data curation and research unit.
Though focused on allaying concerns from both sides of the aisle, Dillingham declined to give his take on the president’s latest apportionment directive.
“So you are confident that we can get an accurate count of legal citizens for the purpose of congressional apportionment?” asked the GOP’s Comer.
Dillingham responded: “I am confident that we are going to analyze the data we have and look at the methodologies that might be employed for that purpose.”
But Prewitt, who served under Presidents Bill Clinton and George W. Bush, warned Trump’s memo is comparable to the U.S. government using 1940 census data to force Japanese Americans into internment camps.
“It cast a very long shadow over the census. And what we’re going through now will cast another very long shadow,” the former census bureau director said.
Both Prewitt and Thompson warned the congressional committee that the Census Bureau is hard pressed to complete the population count by the end of the year after delays caused by Covid-19.
Republicans have indicated that they will not grant a request from the Census Bureau for a four-month extension on the deadline to turn over data to the White House and Congress.
Across the board, the former directors of the decennial count warned that Trump’s push to complete the process by Dec. 31 risks leaving out residents.
“The extra four months is really important,” Prewitt said, recommending the government assign independent and apolitical experts to look over the metrics of the upcoming census count to determine its adequacy.
Democrats have accused the White House of ramming the process through the challenges created by Covid-19 to reap political gains.
Prewitt and Thompson were joined on the congressional panel by fellow former Census Bureau directors Vincent Barabba, who served in the role from 1973 to 1976 and from 1979 to 1981, and Robert M. Groves, who held the position under President Barack Obama.