Trump Moves to Bar Undocumented Aliens From Reapportionment Count

July 21, 2020 by Dan McCue
President Donald Trump speaks to the media in the Rose Garden at the White House on Tuesday, July 14, 2020, in Washington, D.C. (Drew Angerer/Getty Images/TNS)

WASHINGTON – President Donald Trump signed a memorandum Tuesday barring people in the U.S. illegally from being counted in congressional reapportionment.

The Supreme Court last year blocked the administration’s effort to add a citizenship question to the census form, with a majority saying the administration’s rationale for the citizenship question — to help enforce voting rights — appeared to be contrived.

In his “memorandum to the Commerce Secretary,” the president appears to confirm the Justice’s suspicions.

He notes the Constitution “does not specifically define which persons must be included in the apportionment base” and argues that as a result, the president must ultimately make a judgment call about how is included in the apportionment base and who is not.

“Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a state’s boundaries at the time of the census,” the memorandum says.

“Instead, the term ‘persons in each state’ has been interpreted to mean that only the ‘inhabitants’ of each state should be included,'” it continues. “Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment.”

As an example, the president cites aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are ‘persons’ who have been excluded from the apportionment base in past censuses. 

“Conversely, the Constitution also has never been understood to exclude every person who is not physically ‘in’ a state at the time of the census,” he says.

Therefore, the memorandum concludes, “the discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.”

The memorandum is expected to draw vigorous legal challenges.

Immediately after it was released, Tom Perez, chairman of the Democratic National Committee, said, “There is no end to Donald Trump’s anti-immigrant agenda.”

“First, he tried to put a citizenship question on the census but got blocked by the Supreme Court. Now he’s back at it with an unconstitutional order that has no purpose other than to silence and disempower Latino voices and communities of color,” Perez said.

House Speaker Nancy Pelosi also issued a statement, accusing the president of violating the Constitution and the rule of law.

“The Constitution is clear: it requires an ‘actual Enumeration’ of the ‘whole numbers of persons’ for the population count and congressional apportionment,” Pelosi said. “There is no ambiguity about its command. Trump’s unlawful effort is designed to again inject fear and distrust into vulnerable and traditionally undercounted communities, while sowing chaos with the Census.

“The Trump Administration’s relentless, politically-motived attempt to illegally include a citizenship question on the 2020 Census was unequivocally rejected by the Supreme Court last year,” she continued. “Nevertheless, the Administration continues to advance its cruel anti-immigrant agenda, fanning the flames of hatred and xenophobia, tearing countless families apart and challenging our bedrock values of equality and justice for all.”

Pelosi vowed the House will “vigorously contest the President’s unconstitutional and unlawful attempt to impair the Census.”

Later, in a statement, the president said, “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 and conceal the number of illegal aliens in our country. 

“This is all part of a broader left-wing effort to erode the rights of American citizens, and I will not stand for it,” he added.

In the memorandum, Trump declares that as of the completion of the 2020 census, “it will be 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 … to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

The memorandum goes on to take an extended swipe at sanctuary cities and states under the guise of explaining how the exclusion of the undocumented from the apportionment base “is more consistent with the principles of representative democracy.”

“Affording congressional representation, and therefore formal political influence, to states on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles,” the memorandum says, adding, “Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. 

“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 memorandum said.

The Census Bureau said last month that more than 90 million households had already responded to the 2020 Census with the majority doing it online. People can still respond on their own online, over the phone or by mail — all without having to meet a census taker. Only this week, door-knockers started heading out to households in six areas where residents hadn’t yet answered the questionnaire.

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