A part of government anti-immigrant policy that President Trump and his aides pursued throughout their four years in office reached its end on Friday in a federal courthouse in California. The aim was to exclude up to 11 million undocumented immigrants from being counted in the 2020 census. Trump’s legal team told a federal judge that the plan cannot be finished before the new Biden Administration opens next Wednesday.
Here is what President Trump and his Republican allies are now losing: the chance to gain seats for “red” (Republican-oriented) states in the U.S. House of Representatives and, with that, increased power in the Electoral College as it chooses future presidents, plus a push of those millions of foreign nationals outside of the American political community.
Although they cannot vote, those immigrants have had and will continue to have representation in Congress as long as they are counted in the census, according to the Constitution. That means that Congress will pay some attention to their interests, in the same way as lawmakers are expected to do for other constituents who cannot vote – children and, in most states, prison inmates.
What remains of the Trump plan on paper can be wiped out, and is expected to be, very soon after President Biden is sworn into office, by sending new Administration lawyers to notify courts that exclusion will no longer be official policy. The policy, though energetically pursued, has never been implemented because of court challenges and because the Census Bureau never could figure out how to accomplish the Trump goal.
The exclusion plan has been understood all along as likely to enhance the Republicans’ political fortunes at the expense of the Democrats. That’s because those non-citizens live predominantly in “blue” (Democratic-oriented) states, and including them in the nation’s population numbers will help those states keep or even gain seats in the House of Representatives. (The states divide up 438 of the 538 places in the Electoral College based on their shares of the nation’s population.) Democratic states also stand to gain many millions more of federal dollars that are distributed according to population.
The Constitution has always required that the census, taken every ten years, count everyone living in the U.S. on census day – citizen or non-citizen, whether here legally or not. Since a few years after the Civil War, America has had a sizeable population of foreign nationals who have stayed after entering the country illegally. That population has grown steadily, despite a succession of federal laws designed to exclude them, usually based or race or ethnic background. Those laws introduced the idea of “illegal immigration.” Even so, throughout that time, every census has counted them.
For at least the last 40 years, Republican politicians and GOP election experts have been pushing the idea that non-citizens who entered the country in violation of immigration laws and continued to live in the U.S. should not be included in the census count. While that proposal usually got nowhere, the Trump Administration got behind it enthusiastically early in 2017, and made it a central part of overall government policy on immigration, along with harsher restrictions on entry, especially at the Southern border.
To get around the Constitution, the Trump legal team pressed the notion that those who are here without legal permission simply do not “reside” in the country, and in that sense are not a part of America’s population, and should have no part in its political life, even as non-voters.
First, the Administration sought to add a question to the census questionnaire, intending to ask everyone living in the U.S. last April 1 whether they were U.S. citizens. The idea was to provide the basis for identifying undocumented immigrants, but it also was designed to achieve Republican political gains. That plan was challenged, by a group of states, cities and activist groups that expected to be most affected by it. They argued that posing the question would discourage undocumented residents from taking part, resulting in a significant under-count of the nation’s population and thus skewing population distribution among the states.
Lower federal courts temporarily blocked that plan, either under the Constitution or federal census law. The Trump Administration took the dispute to the Supreme Court. The Justices found last year that the Trump team had not given a satisfactory reason for adding the question. That led President Trump last July to issue a specific command to the Census Bureau (and its supervising agency, the Commerce Department) to provide two counts in the 2020 enumeration.
One would count everyone, and one would leave out undocumented immigrants. The second one, which the President and his aides claimed was within presidential discretion under census law, was specifically aimed at influencing how seats in the House of Representatives would be divided up this year.
While three lower courts blocked the exclusion under the Trump order, a divided Supreme Court ruled in December that the challenges were premature, since it was not clear whether a method could even be found for a count without undocumented immigrants, and it was not yet clear what the effect of such an exclusion would be on the House apportionment.
The Census Bureau then pressed on with attempts to devise a way to sort out the numbers of those who would be excluded. Having trouble doing so, it missed a December 31 deadline to come up with the population data to send to President Trump. As the weeks unfolded late last year and this month, the Bureau finally gave up, saying it was having trouble working out kinks in such calculations.
The end of that effort was officially conveyed on Friday to a federal judge in California. U.S. District Judge Lucy H. Koh of San Jose has been handling one of the cases over the immigrant-counting issue in the wake of the Supreme Court’s December ruling; the Justices’ action had the practical effect of letting the Trump team continue to pursue the initiative, at least for the time being.
The filing in San Jose on Friday, a joint document signed both by Administration lawyers and by attorneys for the challengers, notified the judge that the actual population counts – both the national total and any total that excluded non-citizens – “will not be pushed out until after the new [Biden] Administration is in place.” In fact, the document said, the Census Bureau “will not be in a position to finalize or provide apportionment data until many weeks after January 20.”
The two sides asked Judge Koh to put the case on hold for three weeks, “in order to provide for an orderly transition and to let the new Administration assess the case.” The filing requested a postponement of the case until the new government had entered and had time to decide what its legal stance would be. After a conference with the lawyers, Judge Koh signed a brief order postponing further action until February 5.
In practical effect, the judge’s order ratified the effective surrender of the Trump policy initiative, doing so near the fourth anniversary of the President’s first moves on the issue in early 2017.
When the Bureau completes the final apportionment numbers – that is, what each state’s population was in 2020 — the number will go to President Biden and he will send Congress a report on how to divide up the House’s 435 seats. Because America’s mobile population tends to shift a significant amount in the decade between each census, there will be states gaining seats and states losing seats. That’s where the numbers of undocumented immigrants is likely to have an effect.
The population data will then be used next year and beyond by state legislatures in drawing the lines of new congressional election districts and new districts for state legislatures and elected local government bodies. The redistricting data is supposed to be sent to the states by April 1, but the delays at the Bureau may make it difficult to meet that deadline.