The Washington PostDemocracy Dies in Darkness

The twists and turns in Trump’s executive order on immigrants and the census

(Al Drago/Bloomberg News)
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“Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

— President Trump, in a memorandum for Commerce Secretary Wilbur Ross on congressional apportionment, July 21, 2020

This artfully crafted statement serves as the basis for Trump’s executive order to remove millions of undocumented immigrants from the population data Congress uses to apportion House seats among the states.

But it gives a warped view of history to justify an enormous shift in political power. If carried out, the president’s order is likely to reduce seats in Congress for mostly Democratic states.

The Facts

The Constitution requires a nationwide population count every 10 years. Originally, that meant counting “the whole Number of free Persons,” adding “three fifths” of a person for each slave and “excluding Indians not taxed.”

The 14th Amendment now says, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”

The key phrase here is “the whole number of persons in each state.”

“Persons means people. Everyone must be counted … regardless of race or ethnicity or citizenship status,” Thomas Wolf, senior counsel at the Brennan Center for Justice, previously told The Washington Post. What Trump proposes “would be asking every American to disregard the plain text of the Constitution,” he added.

A White House spokesperson said, “The phrase ‘whole number of’ is not relevant to the issue of who qualifies as an ‘inhabitant’ of each state for purposes of apportionment.”

The Trump administration previously spent more than a year arguing in court that it needed to add a citizenship question to the 2020 Census to gather more precise data on potential violations of minorities’ voting rights. More than a dozen states and cities and a range of groups sued to block the citizenship question, calling it a ruse to weaken the political power of heavily Democratic states with large immigrant populations.

Census data is used to allocate nearly $700 billion in federal funds. Congress uses population data from the census to divvy up congressional seats among the states (the more people, the more seats). And the states use the same data to redraw their own legislative districts.

Three federal judges separately found last year that adding the citizenship question would probably produce an undercount affecting states with large Hispanic or immigrant populations. An estimated 11 million to 13 million undocumented immigrants live in the United States. California, for instance, stood to lose one to three of its 53 House seats if the question had been added.

The Census Bureau’s experts found that adding the citizenship question would reduce the response rate among households with at least one noncitizen by eight percentage points. Although census responses are confidential under federal law and cannot be used to assist immigration sweeps or deportations, some noncitizens may have assumed otherwise and refused to answer.

Three judges have found that Commerce Secretary Wilbur Ross gave a phony reason for adding a citizenship question to the 2020 Census. (Video: Meg Kelly, Joy Sharon Yi/The Washington Post)

Trump administration officials insisted, even after losing at the Supreme Court, that their goal was better enforcement of the Voting Rights Act. (Writing for a 5-to-4 majority, Chief Justice John G. Roberts Jr. called the administration’s stated reasoning “contrived” and “a distraction.” We had given it Four Pinocchios.)

But now Trump’s latest executive order, titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” beats like a telltale heart. The sole purpose is to exclude undocumented immigrants from congressional reapportionment, casting even more doubt on all the statements that came before about protecting minorities’ voting rights.

The White House said they were two separate issues. The new executive order “addresses the information the President wants in order to fulfill his statutory responsibility in determining the apportionment,” the spokesperson said.

A Republican strategist, Thomas B. Hofeller, in a 2015 study concluded that adding a citizenship question “would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats,” the New York Times reported.

“And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act — the rationale the administration later used to justify its decision,” the Times reported.

Trump claimed the Constitution’s enumeration “requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.”

In fact, it has been understood at times to include more people than those physically present in the United States. The Supreme Court has ruled that federal personnel stationed overseas could count as part of the U.S. population for congressional apportionment purposes, the goal being “equal representation.” Congress and previous administrations operated with the understanding that the census would count all persons, not just citizens and legal residents.

Until 1950, college students were counted in the states where their parents resided, not where they attended school. Members of Congress may choose to respond to the census from their home states or from Washington. No one inhabiting the United States is being removed from the count in these instances.

The White House spokesperson said that Trump has statutory power to decide who qualifies as a resident of a state for apportionment purposes and that the Supreme Court has ruled that the apportionment count should include every “inhabitant” with an “enduring tie” to their state of residence.

“Since the first census, alien tourists and visitors have been consistently excluded from the apportionment base, even though they are persons physically present in a State,” the spokesperson said. “Likewise, foreign diplomatic personnel living on embassy grounds have also been previously excluded from the apportionment base.”

Four decades ago, a group called the Federation for American Immigration Reform filed a lawsuit challenging the constitutionality of the census and said the Census Bureau was required to count undocumented immigrants separately and exclude them from apportionment. A three-judge panel ruled in 1980 that the plaintiffs lacked standing to sue because they didn’t prove they were personally harmed, and the Supreme Court declined to hear an appeal.

In the 1982 case Plyler v. Doe, the Supreme Court said Texas could not exclude the children of undocumented immigrants from public schools. The court added that “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (However, the court was ruling on a different section of the 14th Amendment.)

“Plyler v. Doe did not address the apportionment at all and simply addressed whether unlawfully present aliens are ‘persons’ within the meaning of the Fourteenth Amendment’s Equal Protection Clause,” the White House spokesperson said. “The fact that someone is protected under that Clause does not require including them in the apportionment base.”

The Census Bureau provides a history on its website. It’s a stark contrast to Trump’s executive order.

“The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress,” the Census Bureau says. “Enshrining this invention in our Constitution marked a turning point in world history. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government.”

The Pinocchio Test

Trump’s stated goal of using the census to exclude undocumented immigrants from political power belies what the administration said for more than a year about wanting to protect minorities with the Voting Rights Act.

His claim that the Constitution has never been understood to require a count of every single person is both a false comparison — no one is suggesting that tourists and diplomats be counted — and belied by historical practice when it comes to undocumented immigrants.

Trump’s memorandum misses key context, distorts history and suggestively leads readers to a flawed conclusion. It gets Three Pinocchios.

Three Pinocchios

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