Trump Bars U.S. Census from Counting Undocumented Immigrants
U.S. President Donald Trump pauses while speaking during a news conference at the White House in Washington, D.C., U.S. (Photographer: Sarah Silbiger/UPI/Bloomberg)

Trump Bars U.S. Census from Counting Undocumented Immigrants

President Donald Trump on Tuesday signed a memorandum that aims to bar undocumented immigrants from being counted in the 2020 census for the purpose of determining U.S. House seats, a constitutionally questionable move that civil libertarians say they will challenge in court.

Trump is seeking to fire up his conservative base ahead of the November election with a policy that would limit political representation for communities with growing numbers of undocumented immigrants.

“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government,” Trump said in a memo outlining the new policy. The president added that “affording congressional representation” to states based on a count that includes undocumented immigrants “undermines those principles.”

The U.S. Constitution says House districts should be based on the “whole number of persons in each state,” which courts have interpreted to mean all people regardless of immigration status. A 2016 Supreme Court ruling said the Constitution requires the use of total population to allocate House seats among the states.

Undocumented immigrants have previously been counted to determine representation in the House.

Vowing to Sue

The American Civil Liberties Union vowed to challenge the policy in court, saying the president can’t select those he wants to count in the census. Democrats said Trump is trying to help Republicans by refusing to count largely non-white groups of immigrants living in the U.S. without legal status.

“There is no end to Donald Trump’s anti-immigrant agenda,” Democratic National Committee Chairman Tom Perez said in a statement, which called the memo “an unconstitutional order that has no purpose other than to silence and disempower Latino voices and communities of color.”

The president argued he has the power to refuse to count undocumented immigrants, writing that the Constitution “does not specifically define which persons must be included in the apportionment base.” The power to determine who are “inhabitants” of a state, and thus eligible to be counted in the in congressional redistricting “requires the exercise of judgment.”

Trump wrote the administration intends to examine the use of data on undocumented immigrants compiled by Cabinet agencies “for the purpose of conducting the apportionment.”

In a nod to his political supporters, Trump accused “the radical left” of “trying to erase the existence” of U.S. citizenship by supporting the counting of undocumented immigrants in the census. “Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all,” he said.

Identifying Undocumented Immigrants

The Trump administration has long sought to use the census to identify the number of undocumented immigrants living in the U.S. and potentially curb their political influence.

In the 2016 Supreme Court ruling, Justice Ruth Bader Ginsburg said using the total population to allocate House seats protects the interests of non-voters, including children who attend public schools and their parents.

“As the framers of the Constitution and the 14th Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote,” Ginsburg wrote in an opinion for six justices. “Total-population apportionment promotes equitable and effective representation.”

The 2016 case centered on the method states use to draw equal-size districts within their borders. The court unanimously said states could use total population for that purpose as well, while stopping short of barring other other methods, such as citizen voting-age population.

The administration last year abandoned an effort to add a citizenship question to the 2020 census after the U.S. Supreme Court put the plan on hold.

Democrats and immigrant-rights groups argued that the question would scare Latinos and immigrants from responding to the questionnaire. The administration said it was needed to enforce the Voting Rights Act, an explanation which did not satisfy the high court.

Opponents of the question presented documents showing that Republicans close to the administration believed it would help the GOP and expand the influence of white voters.

The census count, conducted every ten years, aims to tally the nation’s population and helps decide where federal funds for schools, hospitals, roads and bridges are spent. It is also used to decide how many seats each state has in the U.S. House.

New York Attorney General Letitia James, a Democrat who was part of the lawsuit Trump lost at the Supreme Court, also promised to sue over the new plan. She said in a statement Tuesday that no one “ceases to be a person” because they lack documentation.

©2020 Bloomberg L.P.

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