President Trump’s new census memo is both a shameless power grab and an almost unbelievable Hail Mary.
With the flick of his pen, he is seeking to undercut the growing political power of immigrant communities — with an approach that could boost the electoral power of whiter, red states, while diminishing the representation given to more diverse, bluer parts of the country.
The policy being announced Tuesday will spark a major legal battle, and whether it is even feasible is still in doubt.
But for now, the gambit will serve has pure red meat for Trump’s base, as he faces a difficult reelection. Trump explained in a statement that he was standing up to attempts by the “the radical left” to “erase the existence of this concept” of “citizenship.”
Trump is instructing his Commerce Secretary Wilbur Ross, who is overseeing the 2020 census, to exclude undocumented immigrants from the count used to dole out U.S. House seats among the states — a practice known as apportionment. That count also determines how many Electoral College votes each state gets.
The idea is, at best, legally dubious, as the Constitution mandates that the “the whole number of persons ” in each state be enumerated in the count.
But in the context of conservatives’ years-long crusade to limit the political representation for communities with growing immigrant populations, the policy the President unveiled Tuesday is the the equivalent of the whole hog.
Excluding undocumented immigrants from the apportionment count will likely affect the states with the largest numbers of unauthorized immigrants, according to Jeff Passel, a senior demographer at Pew Research Center. Those states include California, Florida and Texas, he said. But how many seats they’d lose, and whether more states could also lose House representation is unclear, he said, due to the intricacies of the apportionment process. It’s also unclear, he said, which states would gain those seats.
But the political ramifications are only one aspect of understanding how monumental this shift would be. There are long-held philosophical underpinnings to the idea of politicians representing not just who can vote for them, but all of the constituents living in the jurisdictions that they serve.
Trump doesn’t employ much nuance to get around this idea.
“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,” his statement said.
The memo itself claimed the new approach was legal because already excluded from the count are people like tourists or business travelers, who are in the U.S. temporarily, while included in the count are some persons not physically in the U.S., like federal workers overseas.
Notably, Trump’s statement connected this new gambit to his failed effort to put a citizenship question on the census. That move was blocked by the Supreme Court because the administration’s stated rationale — to enhance enforcement of the Voting Rights Act — was bogus. The memo Tuesday only further proves the majority’s conclusion.
The ACLU, which led one of the lawsuits challenging the citizenship question, has already vowed to sue over this new policy, and it will likely be joined by several other voter advocacy and immigrant rights groups.
In defending the policy, the administration will not only have to contend with the Constitution but other federal laws that speak to the idea that all people in a state should be counted, according to Justin Levitt, a law professor at Loyola Marymount who worked in Obama’s Justice Department.
Furthermore, there’s some questions about the legality of the approach the administration would have to take to pull the policy off, because the Census Bureau is not explicitly doing the counting of unauthorized immigrants. Rather it appears that the administration will try to derive who those people are based on existing government records on citizenship.
“There is no count of the undocumented population (and federal law is abundantly clear that what’s required for apportionment purposes is a count), so it’s not practicable,” Levitt told TPM in an email.
Tuesday’s memo pointed to the 2019 executive order Trump signed, after he lost the Supreme Court battle on the citizenship question, instructing the Census Bureau to compile citizenship data using existing government records.
Until Tuesday, the most likely use for the data had seemed to be for states who wanted to do redistricting — i.e. the process of drawing the legislative maps — using data that excluded non-citizens.
The Census Bureau has said it plans to release that data around the time it releases the typical redistricting data that counts the total population. But the Bureau hasn’t yet given a full picture as to how it’s assembling the data.
Meanwhile, outside redistricting experts were already questioning whether the citizenship data the Bureau will produce is useable for that purpose, given the accuracy issues that have been raised.
Tuesday’s memo made clear that the administration wants it to be used for apportionment purposes as well — something that had only been hinted at in 2019 when the citizenship data executive order was announced.
The Census Bureau was already facing considerable challenges in implementing the census during the pandemic. The in-person activities the Census Bureau conducts to complete its count have been hobbled, and the resulting undercount is most likely to affect communities of color and lower-income people, according to experts.
Those consequences will be amplified if Tuesday’s policy is allowed to be implemented.
