Updated at 6:34 p.m. ET
President Trump released a memorandum Tuesday that calls for an unprecedented change to the constitutionally mandated count of every person living in the country — the exclusion of unauthorized immigrants from the numbers used to divide up seats in Congress among the states.
The memo instructs Commerce Secretary Wilbur Ross, who oversees the Commerce Department, to include in the legally required report of census results to the president "information permitting the President, to the extent practicable" to leave out the number of immigrants living in the U.S. without authorization from the apportionment count.
But the move by the president, who does not have final authority over the census, is more likely to spur legal challenges and political spectacle in the last months before this year's presidential election than a transformation of the once-a-decade head count, which has been disrupted by the coronavirus pandemic.
"The House of Representatives will vigorously contest the President's unconstitutional and unlawful attempt to impair the Census," House Speaker Nancy Pelosi, D-Calif., said in a written statement.
Democrats on the House Oversight and Reform Committee say they are preparing to hold an emergency hearing about the census next week.
Groups who fought against the administration's efforts to add the now-blocked citizenship question to the 2020 census — including the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, Asian Americans Advancing Justice, and the state attorney general's offices in New York and California — signaled on Tuesday they're preparing legal action against Trump's memo.
"His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We'll see him in court, and win, again," said Dale Ho, director of the ACLU's Voting Rights Project.
"No one ceases to be a person because they lack documentation," New York State Attorney General Letitia James said in a written statement. "Under the law, every person residing in the U.S. during the census, regardless of status, must be counted."
Since the first U.S. census in 1790, both U.S. citizens and noncitizens — regardless of immigration status — have been included in the country's official population counts.
The fifth sentence of the Constitution specifies that "persons" residing in the states should be counted every 10 years to determine each state's share of seats in the House of Representatives. The 14th Amendment, which ended the counting of an enslaved person as "three fifths" of a free person, goes further to require the counting of the "whole number of persons in each state."
It is Congress — not the president — that Article 1, Section 2 of the country's founding document empowers to carry out the "actual enumeration" of the country's population in "such manner as they shall by law direct."
In Title 2 of the U.S. Code, Congress detailed its instructions for the president to report to lawmakers the tally of the "whole number of persons" living in each state for the reapportionment of House seats. In Title 13, Congress established additional key dates for the "tabulation of total population."
The state of Alabama, however, is arguing in an ongoing federal lawsuit that the framers of the Constitution did not intend for the term "persons" to include immigrants living in the country without authorization. Alabama says it's trying to avoid losing a seat in Congress after the 2020 census by seeking to leave out unauthorized immigrants from the results of the national count that are used to reapportion the U.S. House.
U.S. Rep. Mo Brooks, R-Ala., who joined the state's lawsuit, and Alabama State Attorney General Steve Marshall both praised Trump's memo in statements released Tuesday.
"Representation should be based on those people who reside in their states and this country lawfully," Marshall said in a statement. "A contrary result would rob the State of Alabama and its legal residents of their rightful share of representation and undermine the rule of law."
Attorneys with civil rights groups and a coalition of states led by New York have intervened in the Alabama lawsuit to defend the Census Bureau's policy of including unauthorized immigrants in the counts for apportionment, which under current federal law is not set to happen until early 2021.
"The fact that he's publicly announced it months ahead of when that might occur is somewhat surprising. Obviously, he feels the need once more to distract from his failed leadership," says Thomas Saenz, MALDEF's president and general counsel, of Trump's memo. "This is all about trying to suppress the growing political power of the Latino community."
Citing a 1992 ruling by the U.S. Supreme Court in Franklin v. Massachusetts, Trump's memo argues the president has the discretion to determine who should be included in the apportionment count.
But according to Title 2, it is the clerk of the House of Representatives who is supposed to send to the state governors a "certificate of the number of Representatives" each state receives.
It is unclear exactly how the Census Bureau can produce population counts that only include U.S. citizens and green card holders and do not involve the use of statistical sampling, which, the Supreme Court ruled in 1999, is not allowed for numbers used to reapportion Congress.
The forms for this year's census, which officially began in January, do not ask about a person's immigration status.
Still, Trump's announcement, first signaled in a Politico newsletter last week, comes just over a year after the administration backed down in its failed attempt to add the now-blocked citizenship question to the 2020 census.
In July 2019, the president issued an executive order to use government records, including from state departments of motor vehicles and federal agencies such as the Department of Homeland Security, to produce anonymized citizenship data that could be used to redraw voting districts in a way that, a GOP strategist concluded, would politically benefit Republicans and non-Hispanic white people.
That same order notes that government records on citizenship would help "generate a more reliable count of the unauthorized alien population in the country."
"Data tabulating both the overall population and the citizen population could be combined with records of aliens lawfully present in the country to generate an estimate of the aggregate number of aliens unlawfully present in each State," the order says.
There is a decades-long history of lawsuits going back to the 1980s that tried to get unauthorized immigrants excluded from the apportionment count. The cases, which were led by the Federation for American Immigration Reform, an immigration restrictionist group, were ultimately dismissed.
But Kris Kobach, the former Kansas secretary of state who is now running in a Republican primary for a U.S. Senate seat, has raised with the Trump administration the "problem that aliens who do not actually 'reside' in the United States are still counted for congressional reapportionment purposes."
With the national census self-response rate at just over 62%, the White House announcement threatens to derail the Census Bureau's efforts to finish tallying up roughly four out of 10 households that have not filled out a census form on their own.
When the bureau will deliver the results of the count is an open question. While the apportionment count is due to the president by Dec. 31 under current federal law, the bureau's officials have asked Congress to pass four-month extensions to their deadlines because of the pandemic. So far, only Democrats in the House and Senate have introduced bills that would grant extensions.
The agency's operational plan for the 2020 census includes specially designed efforts, such as providing online forms and call centers in 13 languages, to try to make sure the census includes undocumented immigrants and other populations the bureau considers " hard-to-count."
According to the Census Bureau's residence criteria for determining how to count different groups of residents for the 2020 census, citizens of foreign countries who are living in the U.S. are supposed to be counted "at the U.S. residence where they live and sleep most of the time," while international visitors should not be counted.
The bureau has been relying on ads and community groups to help ramp up its outreach to households with immigrants, people of color and other historically undercounted groups, many of whom remain distrustful of sharing their information with the government despite federal laws that require the Census Bureau to keep personally identifiable census information confidential until 72 years after it's been collected and prohibit that information from being used against an individual.
Many organizations that have been leading efforts to boost census participation have condemned Trump's memo.
"Trump is attempting to upend the $16 billion, half-finished census, leaving states with inaccurate numbers that will deprive communities of federal assistance to recover from the pandemic," said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, in a statement.
"As we are in the middle of a pandemic, the timing of these developments adds a transparent layer of cruelty to the Administration's actions," said Arturo Vargas, CEO of the National Association of Latino Elected and Appointed Officials, adding that the memo "would waste billions of taxpayer dollars that have already been spent to carry out the count thus far."
The administration has also raised concerns in recent weeks by making two new political appointments at the bureau. The move has sparked an inquiry by the inspector general for the Commerce Department, which oversees the bureau. Democratic lawmakers and professional associations, including the American Statistical Association and the American Economic Association, are questioning whether the appointments of Nathaniel Cogley, a political science professor, and Adam Korzeniewski, a former political consultant to a YouTube personality known for racist pranks, are a partisan attempt to interfere with the census.
NPR White House correspondent Tamara Keith contributed to this report.
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