President Trump on Tuesday directed his administration to exclude immigrants who are in the country illegally when calculating how many seats in Congress each state gets after the current census, a decision that critics denounced as unconstitutional and one that will likely face a swift court challenge.
The president’s directive, which would adopt a practice never before used in U.S. history, faces several major hurdles — legal, logistical and political.
If successfully carried out, however, it could have far-reaching effects by reducing the political clout of states with significant numbers of immigrants, including California and Texas. It could also shift power toward whiter, more rural areas of states at the expense of more diverse cities.
The move also provided the latest example of Trump’s embrace of divisive issues as he slides further behind Joe Biden in polls of the presidential race. In recent days, Trump has promised to deploy more federal forces to cities led by Democrats, he’s falsely denounced mail ballots as a source of pervasive fraud and he’s repeatedly described himself as the last line of defense against left-wing radicalism.
Within hours of his signing of the directive on the census, the White House also threatened to veto bipartisan legislation to fund the Pentagon because it would require renaming military bases currently named for Confederate leaders.
Whether Trump’s shrinking base of conservative, mostly rural, white voters will rally around such scorched-earth politics remains unknown. Some polls suggest that at a time when the country is reckoning with the deadly coronavirus crisis and resulting economic devastation, some of Trump’s supporters have turned against him over his divisiveness.
But the moves signal a focused effort by a president to ratchet up the nation’s tensions, rather than calm them, which is without recent precedent.
“As hundreds of Americans die each day from the COVID-19 virus, and thousands more become infected, President Trump continues to play political games,” said California Secretary of State Alex Padilla, a Democrat.
“Trump’s nativist dog whistle has turned into a bullhorn, and most Americans are tired of the act,” he added.
According to a presidential memo released by the White House on Tuesday, census workers would continue counting immigrants who are in the country illegally, but they would not be factored into decisions about congressional representation. The Census Bureau would have five months to come up with a way to accurately estimate the number of residents illegally in each state in order to subtract them from the overall count.
“Respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base,” the memo says.
Trump followed up his memo with a statement claiming there’s “a broader left-wing effort to erode the rights of Americans citizens.”
“My administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government,” he said. “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.”
Excluding immigrants here illegally from the count would likely cost California at least one congressional seat, maybe more, demographers say. Texas also likely would lose representation, while states with few immigrants, including Alabama and Montana, most likely would gain.
Democrats and civil rights organizations blasted Trump’s decision as illegal and harmful.
“This order isn’t worth the paper it’s printed on and will be struck down by the courts,” said a statement from Sen. Charles E. Schumer (D-N.Y.), the Senate minority leader.
“Attempting to weaponize the Census for political gain is yet another racially driven attack by a president and administration that wrongly views immigrants as the enemy, when they are a vital part of our society.”
Michael McDonald, a political science professor at the University of Florida, doubted the Commerce Department, which oversees the Census Bureau, could even meet Trump’s timeline for quickly developing a methodology for estimating the number of immigrants without legal status in various areas of the country.
“There are just so many moving parts here,” he said.
Dan Stein, president of the Federation for American Immigration Reform, supported Trump’s decision.
“The process of including illegal aliens in the census count for the purpose of reapportionment, as it has been practiced in recent decades, is fundamentally unfair to law-abiding Americans, and the president should be applauded for taking long overdue action to safeguard their interests and constitutional rights,” he said in a statement.
The Constitution mandates an “actual Enumeration” every 10 years of “all persons” in the country, but the president has repeatedly tried to limit who is counted. He’s sided with immigration restrictionist groups that have argued that the constitutional language was not intended to include people in the country without legal authorization.
The administration attempted to include a question about citizenship on the census form, a move that was ultimately rejected by the Supreme Court in 2019, with Chief Justice John G. Roberts Jr. ruling that Commerce Secretary Wilbur Ross had failed to honestly explain why he sought to change the census forms. Roberts called the stated reason — a need to have information to enforce the Voting Rights Act — “contrived.”
Democrats and other critics of the administration said that effort was an attempt to suppress census response rates in states with large immigrant communities.
Advocacy groups remain concerned that the publicity around Trump’s push for a citizenship question already has made millions of immigrants or mixed-status families reluctant to respond to the census.
In addition to the Supreme Court case, Alabama went to court in 2018 seeking to have residents illegally in the U.S. excluded from the census count. Alabama officials argue that doing so would mean their state would keep an extra congressional district after the next census that would otherwise go to a state with a large number of immigrant residents.
More than a dozen states, including California and New York, have opposed Alabama’s effort, which is still pending in federal court.
Officials from Democratic states and immigrant advocacy groups pledged to oppose Trump’s latest directive as well.
“The Constitution requires that everyone in the U.S. be counted in the census. President Trump can’t pick and choose,” Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, said in a statement.
“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.”
Trump’s order comes months after the federal government began conducting the 2020 census in March. Nearly two-thirds of households nationwide have already responded to the survey, which is a key tool for determining how federal funds are distributed.
The Trump administration has asked Congress to give it four additional months to complete the 2020 census, blaming the COVID-19 pandemic and the need to delay in-person outreach. At the end of July, census takers are expected to begin knocking on doors of people who did not respond by mail, phone or online.