President Donald Trump on Tuesday signed a memo that aims to bar undocumented immigrants living in the country from being included in the census for purposes of deciding how many members of Congress are apportioned to each state.
Trump said in the memo that it will be the “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act.”
The memo directs Commerce Secretary Wilbur Ross, who oversees the census, to provide the president with data about the number of people who are undocumented, so that when census officials present the president will its final count, the president can exclude them from the population totals used to determine how many seats each state will receive in Congress.
"We will collect all of the information we need to conduct an accurate census and to make responsible decisions about public policy, voting rights, and representation in Congress," Trump said in a statement on Tuesday.
The administration argues that the U.S. Constitution does not specifically define which "persons" must be included in the apportionment base, noting that documented immigrants who are in the country temporarily and certain foreign diplomatic personnel are "persons" who have been excluded from the apportionment base in past censuses.
It was not immediately clear how undocumented immigrants would be identified in order to omit them from the census count.The census questionnaire, which was distributed in March, did not require respondents to indicate whether they or others in their household are citizens.
The administration attempted last year to add a citizenship question on the 2020 census for the first time in 60 years, but the Supreme Court blocked the Department of Commerce, which oversees the census. In that decision, Chief Justice John Roberts joined the four-member liberal wing of the court and said the administration’s rationale for adding it was “contrived.”
The census results are used to determine the number of seats in the House of Representatives each state is allocated and impacts the dispersal of billions of federal dollars. Omitting undocumented immigrants has been criticized as an effort to reduce aid to states with large immigrant populations and to reduce the political clout of those areas, which are heavily represented by Democrats.
Trump's order is likely to prompt legal challenges from Democratic-controlled states that brought the previous lawsuit challenging the citizenship question as unconstitutional. In that case, the opponents argued that a citizenship question would discourage all immigrants from responding and jeopardize the constitutionally-mandated count.
The Constitution directs Congress to conduct a census count of "persons” living in the U.S., and does not distinguish between citizens and non-citizens. The Supreme Court has not directly ruled on whether "persons" includes immigrants, but lower courts have said undocumented immigrants should be counted.
"The resident population counts include all people (citizens and non-citizens) who are living in the United States at the time of the census,” according to the Census Bureau's website. “People are counted at their usual residence, which is the place where they live and sleep most of the time."
Immigrant rights and civil liberties groups excoriated the administration over the decision.
“The Constitution requires that everyone in the U.S. be counted in the census. President Trump can’t pick and choose,” said Dale Ho, director of the ACLU’s Voting Rights Project, who also argued the Supreme Court case blocking the Trump administration from placing a citizenship question on the 2020 census.
“He tried to add a citizenship question to the census and lost in the Supreme Court. 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.”
Krish O’Mara Vignarajah, the head of Lutheran Immigration and Refugee Service, one of the largest and oldest refugee resettlement organizations in the country, said in a statement both undocumented and documented immigrants will be punished as a result of this memo.
“This odious executive order reaffirms what we already knew: this White House does not see immigrants as people,” she said. “The inhumanity of the order alone is astounding. But its implications for our nation—for the millions of people who won’t be accounted for in public funding for schools, hospitals, or emergency services, among others—is simply unconscionable.”
Trump railed against the Supreme Court decision, but the bureau printed and mailed questionnaires with only the standard questions about race, age, sex, and household size. However, soon after the court defeat last year, the administration was viewed as attempting to circumvent the decision and began asking states for drivers' license records that often include citizenship data, according to the Associated Press.
While the census count began in March, since the COVID-19 outbreak the timeline for completion has been delayed and updated and a final count is now expected to be delivered the presidents and states next year. People could respond to the census online for the first time this year.
This week, the census bureau began sending staff to households that have not responded. The bureau reported as of July 16th, 62 percent of U.S. households had completed their census form.
