Trump is now pursuing another way to wield the census against noncitizens — confirming that the court was correct in finding the administration to be disingenuous in the earlier case. The administration will now try to figure out which people identified by the census are undocumented immigrants using information shared with the Commerce Department by other agencies. That Trump’s dishonesty on census-related questions is now crystal clear could doom this executive order as well — fairly quickly.
For two centuries, the United States has apportioned seats in Congress by population — citizen and noncitizen alike. This order will undoubtedly be challenged because it contradicts the Constitution on this point and will likely be stopped from immediately going into effect by a district court. But the question of whether the order can go forward will ultimately lie in the hands of the Supreme Court, which can choose to put on hold a district-court decision invalidating the executive order while the matter continues to be litigated up through the federal courts.
The president’s latest executive order directs the secretary of Commerce to prepare a report that excludes from the census count any undocumented immigrants in the United States — a report that would be then used in the allotment of congressional seats in the next round of redistricting. Such a scheme would heavily favor Republicans, because Democratic-leaning areas tend to be more racially diverse and immigrant-rich than Republican-leaning ones. Excluding undocumented immigrants from the apportionment process would give Democratic-leaning areas fewer representatives relative to Republican-leaning areas.
Given that the Constitution directs that congressional representation be apportioned based on “the whole Number of … Persons,” not just citizens, the president’s order excluding undocumented immigrants from the census is very likely illegal.
Beyond that rather glaring defect, however, the new executive order also confirms the theory behind the lawsuits challenging the administration’s earlier attempt to add a citizenship question to the census. When the administration attempted to do that, its lawyers made that preposterous claim that a citizenship question was necessary to enforce the Voting Rights Act. It was not; citizenship information had never been collected on the census while the Voting Rights Act was on the books. What’s more, this administration has never attempted to enforce the Voting Rights Act. Civil rights groups argued that the citizenship question would open the door to allowing states to draw districts based on the number of voters, rather than total population, to dilute the political power of Democrats.
When it invalidated that effort to manipulate the census, the court stopped short of saying the administration was purposefully trying to dilute the voting power of Democrats and Latino voters. Chief Justice John G. Roberts Jr., who wrote the majority opinion, only went so far as to say the administration had not been straightforward about its true reasons for adding a citizenship question.
Now the new executive order underscores that collecting citizenship information was always about drawing districts on the basis of citizens, or total voters, to reduce Democratic voting power.
That will have consequences. After the inevitable district court decision enjoining the new executive order, the administration will ask for a stay of the lower-court ruling. The administration has made a record number of stay requests to the court; and the court has also frequently granted them, allowing the administration to enforce a variety of asylum prohibitions, immigration restrictions and the construction of a border wall, even as those policies are challenged in court.
This time will be different, however, since the administration’s request would rub the justices’ noses in the fact that they’d been lied to about the census once already. That may be too much for this court, and the chief justice, to bear — leading to an early demise for this dismal executive order.