Trump Unveils New Census Rules to Exclude Undocumented Immigrants

Census taker Stephan Patterson poses for a photo in Anchorage, Alaska, on Feb. 21, 2020. (AP Photo/Mark Thiessen)

WASHINGTON (CN) — Sure to trigger a swift legal challenge from the Democratic jurisdictions such a move targets, President Donald Trump signed a memorandum Tuesday to exclude undocumented immigrants from the decennial census count used to divvy seats in Congress.  

“The Constitution requires that everyone in the U.S. be counted in the census,” Dale Ho, director of the Voting Rights Project at the ACLU, said in a statement. “President Trump can’t pick and choose.”

Similar to the administration’s attempt to include a citizenship question on the 2020 census, Tuesday’s order pertains to the apportionment base used to determine how seats are allocated between states in the House of Representatives.

“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of government,” the memorandum states. “Affording congressional representation, and therefore formal political influence, to states on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.”

As for how the citizenship information will be determined, the White House released a memo this afternoon referencing a July 2019 order that required other federal agencies to share the data with the Commerce Department, which conducts the census. 

Trump signed the memo in the Oval Office shortly after 1 p.m. on Tuesday.

The administration’s previous attempt to add a citizenship question to the census culminated in a Supreme Court defeat last year.

Mandated in the Constitution, the census is conducted every 10 years and is used to determine the number of seats each state gets in Congress. The count is also critical to how federal dollars get divided among states and localities.

After the census is completed, the Commerce Department delivers a report to the president that details the total residents in each state. A short time later, typically in early January, the president then sends Congress a statement on how seats in the House should be divided based on the Commerce Department’s report.

The memo Trump signed in the Oval Office just after 1 p.m. Tuesday requires the Commerce Department to take “all appropriate action” when preparing that report to let Trump exclude people living illegally in the United States from his final apportionment statement.  

Tom Wolf, senior counsel at the Brennan Center for Justice, said the Trump action threatens the integrity of those allocations and is a blatant violation of the Constitution, which requires a count of the “whole number of persons” in each state. 

“President Trump — and no president — has any legal authority to decide who does and doesn’t count for purposes of the census,” Wolf said in an interview. “This is well established by the 14th Amendment, this is not just my opinion in my own eyes. Any American can read the Constitution and see what it will tell their own eyes — that all people must be counted.”

Wolf said the policy could lead to undercounting in some communities, which could be particularly damaging for states and localities as they begin the process of recovering from the coronavirus pandemic.

“If your community is not accurately counted, you will not get your fair share,” Wolf said. “Accurately counting means counting everyone. So if you live in a community that has any people in it who are undocumented people who President Trump would try to exclude, you would lose out because all President Trump’s order would do is erase some numbers, it cannot erase people.”

Because immigrants tend to live in urban areas, which in turn tend to lean more left than wealthier suburbs, a policy of not counting undocumented immigrants would mean fewer federal dollars and seats in Congress for Democratic communities.

House Majority Leader Steny Hoyer said the House will “do everything in our power” to prevent Trump from influencing the 2020 census count.

“We must not allow our Constitution to be further undermined by this president, who has demonstrated no regard for its articles and disdain for the rule of law it protects,” Hoyer, a Maryland Democrat, said in a statement.

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