President Trump, apparently contradicting two specific mandates in the Constitution, today banned the counting of undocumented immigrants living in the U.S. when seats in the House of Representatives are divided up next year, following the 2020 census.
In an executive order that civil rights groups immediately vowed to challenge in court, Trump claimed that it was within his power as President to decide whom to include in the every-ten-year apportionment of the 435 seats in the House. (The order affects only the House; every state gets two seats in the Senate, regardless of population.)
Once the census is completed late this year, it is up to the federal government to calculate how to divide up representation in the House based on the states’ shares of the nation’s total population, but that process in its most basic form is dictated by the Constitution.
The new order, if allowed to stand, would mean that between 10 and 12 million undocumented immigrants would not be counted for that purpose. They will be counted in the census total, however, as they routinely have been.
Trump’s action would have the greatest impact on the states with larger populations, most of which have Democratic political majorities, including California and New York. Some of those states almost certainly would lose some House seats.
A reduction in the House seats would also translate to less influence for those states in the election of presidents, because the 435 House membership total is one part of the formula for setting the total number of votes to be cast by the Electoral College, which actually decides the presidency (unless there is a tie).
This was the latest attempt by the President to defy or alter constitutional norms, and amounted to one of his boldest attempts to provide political advantage to the Republican Party.
While the census has always counted everyone making their homes within the nation when the total was determined, Trump sought to rely on exceptions to two groups always left out of the count: foreigners in the U.S. temporarily on business or touring, and foreign diplomats serving their countries during tours of duty in the U.S.
While the order argued that “the Constitution does not specifically define which persons must be included in the [House] apportionment base,” the basic document’s Article I and Fourteenth Amendment explicitly say that “the whole number of persons in each state” are to be counted in the census, with the proviso that this count is used in allocating House seats among the states. (The Constitution does guarantee at least one House seat for every state, because there are states with low populations that, mathematically, would get no seat if population were followed exactly.)
It was plain that Trump Administration lawyers had worked out three theories to support the President’s new initiative:
First, they interpreted existing federal laws on the census to give the President discretion “to exercise judgment” in interpreting how apportionment is to be calculated.
Second, they read the Constitution’s reference to “persons in each state” to mean “inhabitants,” and found that word to mean persons “physically ‘in’ a state at the time of a census.” This relied upon an argument frequently made in immigration law that a person who gets into the country illegally and remains is, technically and legally, not “in” the country but actually in limbo, until legally allowed to enter.
Third, the lawyers relied upon a theory of political representation, under which people who do not have a right to vote (non-citizens do not have that right) are not entitled to have representatives in government. Applying that theory, the new order said: “Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of government.” (The order made no mention of the fact that children and prison inmates do not have a right to vote, but they are always counted for apportionment purposes and are considered to be represented in Congress as a result.)
In addition to the four-page executive order, the President issued a separate statement that was more explicitly political. He accused “the radical left” of trying to erase the pride that is in the declaration that one is a U.S. citizen, and of trying to “conceal the number of illegal aliens in our country. This is all a part of a broader left-wing effort to erode the rights of Americans citizens and I will not stand for it.”
He also claimed that his Administration has “a better understanding of the Constitution.”
A prominent feature of President Trump’s time in the White House has been a continuing attack on illegal immigration, and the order fit within that approach. That attack has been run from the White House and the Department of Homeland Security, along with legal support from the Justice Department.
The new initiative was a sequel to an effort by the President and his aides to include on this year’s census form a question designed to find out who living in the nation is a U.S. citizenship. That had the same political and cultural goals as the new executive order, but it was struck down by the Supreme Court last July as having been based on a faulty legal rationale.
Even though defeated by that ruling, the President went ahead last summer and ordered government agencies to compile non-citizen data from whatever government records contained it, and the information turned up by that effort apparently will be used to carry out the new initiative on the House apportionment.