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On Tuesday, United States President Donald Trump signed a memorandum to exclude the nation’s undocumented immigrants from the Census count, which is used to apportion the number of representatives in the House for each state on the basis of the state’s total population.
Trump states in the memo, “For the purpose of 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 order will be challenged in court.
Why is this contentious?
If it is upheld, it will not only affect the balance of power between Democrats and Republicans in the House, but also the allocation of federal resources to states and communities, which is also determined on the basis of census data.
“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," Trump’s memo reads in possible reference to California, the state with the largest number of undocumented immigrants.
“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."
Democrats represent 45 of California’s 53 congressional districts in the House.
The order directs commerce secretary and overseer of the Census data Wilbur Ross to provide Trump with data on the total number of undocumented immigrants in the nation. That number will then be excluded from the total count of the census to determine how many seats each State will get in the House of Representatives.
It remains unclear how the administration will determine the number of undocumented immigrants.
The census, which is conducted every 10 years, does not include a question of citizenship.
“Presumably the Trump administration will have to rely on a hodgepodge of other records to guess the population they intend to use for apportionment," Joshua Geltzer of the Georgetown University Law Center told CNN.
Immigrant advocacy groups have long argued that a citizenship question may discourage immigrants from responding to the census, thus affecting the allocation of seats to each state in the House.
In 2018, the Trump administration tried to include a citizenship question in the US 2020 census but the move was blocked by the Supreme Court, which ruled that the administration’s reasoning for attempting to do so was “contrived.”
According to the Census website, 62.2% of citizens have responded to the US 2020 census, which is ongoing.
Democrats flag action
The Democratic-led House Oversight Committee announced an emergency hearing in relation to Trump’s memo.
The committee’s chair, New York Congresswoman Carolyn Maloney, said of the Trump administration’s memo, “Taking this step right in the middle of the ongoing census is particularly egregious and sinister because it appears purposefully designed to depress the count, deter people from filling out their forms and corrupt the democratic process on which our nation is founded.”
Civil rights and immigration advocacy groups are also planning to mount legal challenges to the memo.
Dale Ho, the attorney of American Civil Liberties Union (ACLU), who challenged the administration’s 2018 citizenship question in the Supreme Court, said in reference to the 14th Amendment, “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. 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."
The immigration advocacy group CASA also said in a statement, “The Trump administration’s action today is even more clearly unconstitutional, as they seek not just to chill participation from noncitizens, but literally to remove them from the final numbers. CASA will again fight this in court and ensure that everyone is counted in the 2020 Census."
The Trump administration said in the memo that since the 14th Amendment only requires that “the whole number of persons in each State” be counted for the census, without determining the identity of such “persons”, the administration has “authority to exclude from the apportionment base aliens who are not in a lawful immigration status."
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