President Donald Trump signed a memo Tuesday that would exclude millions of undocumented immigrants from being counted when congressional districts are revised following the 2020 Census.
The move marks the latest attempt by the Trump administration to use the census to target undocumented immigrants, and is expected to face legal challenges. Excluding undocumented immigrants from the census could put some states at risk of losing voting power in Congress, and have ripple effects in terms of how and where district lines are drawn.
Trump’s memo said the US Constitution did not specifically define “which person must be included” in congressional reapportionment and that the executive branch has final say in who is considered an inhabitant of the state, including the authority to exclude undocumented immigrants.
“For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act,” the memo states.
Trump said his administration would not support giving congressional representation to undocumented immigrants.
“There used to be a time when you could proudly declare, ‘I am a citizen of the United States.’ But now, the radical left is trying to erase the existence of this concept,” Trump said in a statement. “This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.”
Every 10 years, the Census Bureau counts every person, citizen or noncitizen, living in the US, regardless of whether they're authorized to be in the country. The Pew Research Center estimated there were about 10.5 million undocumented immigrants in the US.
The US Constitution says, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State."
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, in a statement said the Supreme Court has long held that persons are persons under the Constitution, regardless of immigration status.
"This memorandum will be swiftly struck down by the federal courts," Saenz said. "Today’s memorandum will end up in the dustbin of history as yet another exemplar of Donald Trump’s disturbing embrace of white nationalism. It will stand as another shameful monument to his attempts to sow division in our nation’s populace. It will earn recognition as another unmasking of Trump’s perverse and damaging 'leadership.'"
Trump’s memo doesn’t change how the census is carried out — undocumented immigrants can still respond to the survey — but it undercuts how much states with large populations of undocumented immigrants can benefit. Census data on population are used to determine the number of seats each state gets in the House of Representatives, which in turn affects how many votes they get in the Electoral College. Census data is also used to calculate how billions of dollars in federal funding is distributed to states, but it was not immediately clear if Trump’s memo would affect that.
Trump’s memo made clear that this latest action is intended to punish states with larger populations of undocumented immigrants, and specifically those that lean Democratic. The memo refers to an unnamed state that has an estimated population of 2.2 million undocumented immigrants, which according to the Pew Research Center is likely California, where state officials have repeatedly sued the Trump administration to challenge immigration-related and other policies.
“States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives,” the memo states.
Previously, the administration had unsuccessfully tried to add a citizenship question to the 2020 census form, an effort that civil rights groups and the Census Bureau itself predicted would depress response rates and lead to less accurate data.
Following that loss, the administration has turned to other sources to gather data on the population of undocumented immigrants in the United States. NPR reported this week that the administration was entering into agreements with some states to get driver’s license and other identification card information to build out its database of citizenship records. The Census Bureau does ask about citizenship as part of a separate survey sent to a smaller pool of households each year.
The White House lost the fight over the citizenship question in June 2019, when the Supreme Court ruled in a 5–4 decision that the reason the administration gave for adding the question — enforcing voting rights — was “contrived” and didn’t line up with the evidence. The Supreme Court sent the case back to the Commerce Department, which later, along with the Justice Department, said the 2020 Census would proceed without a citizenship question.
For a brief period, Trump insisted his administration would try to find a way to include the question — contradicting the commerce and justice departments — but ultimately dropped the issue. There were signs at the time, however, that the administration was open to the argument that the federal government couldn’t use data on undocumented immigrants for apportionment purposes.
When the Trump administration announced that it would give up on the citizenship question, Attorney General Bill Barr said that they were “studying the issue” of whether undocumented immigrants could be included when the government used census population data to decide how to allocate federal funding and divide up congressional districts.
Since 2018, the administration has been in court defending itself against a lawsuit filed by state lawmakers in Alabama seeking to block the federal government from including undocumented immigrants in data used to determine congressional seats and Electoral College votes. But the federal judge presiding over the litigation described the government’s efforts in the case as “half-hearted,” and allowed Democratic state attorneys general to intervene to separately fight Alabama’s case.
Alabama survived an early attempt by the administration to have the lawsuit dismissed — the judge concluded state lawmakers had standing to sue — but the judge has yet to rule on the substance of the fight. Alabama is arguing that when the Constitution states that the federal government has an obligation to count “persons in each State,” it only applies to people who are lawfully in the country.
The Census Bureau has long taken the position that every person living in the United States is included in the decennial census. In a section of the agency’s website titled “Setting the Record Straight,” the agency explicitly says that noncitizens are included. The only exception that the bureau articulates is for foreign citizens who are temporarily in the United States for “vacation or business.”
“Everyone counts. The 2020 Census counts everyone living in the country, including non-citizens,” the bureau states.
An analysis from the George Washington Institute of Public Policy found that federal programs relied on the census to distribute $1.5 trillion to state and local governments, businesses, nonprofits, and households across the US.
The number of undocumented immigrants living in the US has fallen to a 13-year low. In 2017, there were 10.5 million undocumented immigrants in the US, down from its peak of 12.2 million in 2007, according to the Pew Research Center. The number is the lowest since 2004, when the US was home to 10.7 million undocumented immigrants.
While some states with the largest undocumented populations saw declines in their overall numbers, places like Louisiana, Maryland, Massachusetts, North Dakota, and South Dakota saw increases.