President Trump issued a directive Tuesday instructing the U.S. Census Bureau to not count undocumented immigrants for purposes of apportioning seats in the House of Representatives, targeting states like California, Texas and New York with large communities of residents who lack a legal immigration status.
Mr. Trump's authority to exclude unauthorized immigrants from the calculations made after each census to determine how many representatives each state should have in Congress is unclear, and Tuesday's order is expected to face court challenges. If enacted, however, the policy could have a seismic political impact, as states can gain or lose seats in the House every 10 years after the census, depending on how their populations compare to others.
U.S. census data is also used to allocate federal resources to states and local communities.
The U.S. has long counted non-citizens, regardless of their immigration status, for the purposes of congressional apportionment. The Constitution says that each state must have at least one representative, and that the apportionment of others should be based on an enumeration of the population.
Until the 14th Amendment was ratified in the 1860s, enslaved African Americans were counted as three-fifths of a person for congressional apportionment. American Indians "not taxed" were excluded until 1940.
The 14th Amendment also requires the enumeration of "the whole number of persons in each State." In his order Tuesday, Mr. Trump said that since "persons" is not defined, he has the "authority to exclude from the apportionment base aliens who are not in a lawful immigration status." Doing so, he added, would uphold the principles of a representative democracy.
"Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State's entire population," Mr. Trump's memorandum said, presumably referring to California, the state with the largest community of undocumented immigrants in the country. "Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated."
Tuesday's order is part of a concerted campaign by the Trump administration to fundamentally change how the U.S. government conducts its census every 10 years.
The Trump administration first proposed including a question on U.S. citizenship during the 2020 census in March 2018. But its efforts do so, which it said were aimed at enforcing the Voting Rights Act of 1965, elicited a flurry of legal challenges that ended up at the Supreme Court, which blocked the administration from adding the question in time for the questionnaires to be printed.
During the litigation over the question, it was revealed that Thomas Hofeller, a now deceased conservative political operative, played a role in helping the administration craft the justification for the citizenship question addition, which he said in a 2015 study would allow officials to draw electoral maps advantageous to "Republicans and Non-Hispanic Whites."
The Democratic-led House Oversight Committee announced it would hold an emergency hearing next week on Tuesday's order. Its chair, New York Congresswoman Carolyn Maloney called the president's order an "egregious and sinister" attempt to depress the census count, which is ongoing.
Dale Ho, the attorney at the American Civil Liberties Union who challenged the citizenship question before the high court, signaled that a new lawsuit could be in the works against Tuesday's directive.
"The Constitution requires that everyone in the U.S. be counted in the census. President Trump can't pick and choose. He tried to add a citizenship question to the census and lost in the Supreme Court," Ho said in statement. "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."