President Donald Trump signed a memorandum on July 21 instructing the US Census Bureau to exclude undocumented immigrants from the population totals that determine how many seats in Congress each state gets. It is an unprecedented move that seems to be an attempt to preserve white political power. The American Civil Liberties Union said immediately that it would sue and the action is likely to be met with a flood of legal challenges. The Trump administration appears to be on shaky legal ground, as the US constitution requires seats in Congress to be apportioned based on the “whole number of persons” counted in each state during each decennial census. The constitution vests Congress with power over the census, though Congress has since designated some of that authority to the executive. Republicans in recent years have been pushing to exclude non-citizens and other people ineligible to vote from the tally used to draw electoral districts. In 2015, Thomas Hofeller, a top Republican redistricting expert, explicitly wrote that such a change “would be advantageous to Republicans and non-Hispanic whites”. The White House memo, titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” argues that the term “person” in the constitution really means “inhabitant” and that the president has the discretion to define what that means. The memo also argues that allowing undocumented people to count rewards states with high numbers of undocumented people.
“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,” President Donald Trump said in a statement. “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.” Nancy Pelosi, the House speaker, said the House of Representatives would “vigorously contest” the order. “By seeking to exclude undocumented immigrants from being counted in the 2020 census, the president is violating the constitution and the rule of law,” Pelosi said in a statement.
The Trump adminitration’s interpretation is likely to be strongly challenged in court. Experts have said that the idea of illegal immigration did not exist when the constitution was written. Immigration early in America was relatively “free and open”. US Customs and Immigration Services says on its website the federal government began to regulate it in the 19th century. “If those are the best arguments they have, they’re dead in the water,” said Thomas Wolf, a lawyer at the Brennan Center for Justice who works on census issues. “There’s no way to get around the fundamental command of the constitution, on the plain text of the constitution, to count everyone.” The legal rationale for the memo is so specious, Wolf said the motivation behind the memo might not be to enact it. He speculated the Trump administration may be trying to create uncertainty or confusion among immigrants already wary of responding to the census.