Census officials in the Trump administration prepared a briefing for then-Secretary of Commerce Wilbur Ross last August on several strategies to exclude undocumented immigrants from the 2020 Census, according to an internal document obtained through a public record request by the nonprofit Campaign Legal Center and provided to NBC News.
This is the first public disclosure that Trump administration officials tried to find ways to carve out the country’s undocumented population from being counted in the census after then-President Donald Trump signed a directive with that aim last July.
The order directed Ross, whose agency oversees the census, to provide the president with data about the number of people who are undocumented so that when census officials presented Trump with the final count, he could exclude them. The census is required by the Constitution to be done every 10 years and is used to determine how many members of Congress each state gets in the House of Representatives. The data is also used to calculate local governments' share of $1.5 trillion in many federal programs.
The internal briefing memo includes a strategic analysis on three options that the Census Bureau under Trump considered using to carry out the administration’s plan to exclude undocumented immigrants from the count.
There is no indication the plan was executed. Last September, a federal court blocked Trump's order and President Joe Biden reversed the directive soon after taking office. Biden also blocked another Trump directive that the bureau collect citizenship information about every U.S. resident using administrative records, which came after the Supreme Court nixed the Trump administration's effort to add a citizenship question to the census questionnaire.
Jade Ford, an attorney for the Campaign Legal Center, a watchdog group, said the memo reveals not only the unlawful ways the administration attempted to carry out the plan, but also that they most likely would have produced deeply flawed data.
“This didn't end up happening, but it's still important because future administrations could try to do this again,” Ford said. “This was all part of that plan to really radically shift power between states by excluding undocumented immigrants from the count.”
Trump officials knew that the data would be inaccurate because each strategy in the document had “pros” and “cons” for each strategy, and one option would flout Supreme Court precedent, Ford said.
For instance, one option they considered was counting every person in ICE detention facilities and affiliated parts of county jails to determine the number of undocumented immigrants in the country, and then exclude those individuals from a jurisdiction's enumeration. However, Ford said this would have been a wildly inaccurate way to try to estimate the undocumented immigrant population because some people in ICE detention facilities are ultimately found to be in the country lawfully.
The memo itself acknowledges this issue in the “cons” section by suggesting that it would have to be assumed "that either all prisoners living in the detention centers are here illegally or some proportion.” It also acknowledged that the number of undocumented immigrants in the facilities would be on the “lower-end” of “actually illegal people.”
Another option would have relied on data from the American Community Survey, known as the “long-form” census, which collects demographic data annually from roughly 3 percent of households in the U.S. However, in 1999 the U.S. Supreme Court rejected the Census Bureau’s proposed uses of statistical sampling, such as the methods used on the ACS, to calculate the population for purposes of congressional apportionment. In addition, the Census Act prohibits the agency from using sampling methods to determine apportionment.
The memo simply lists this option as a “con."
Another option considered was using federal administrative data from other agencies, which the agency has long used to make estimates, but not for purposes of excluding undocumented immigrants. The internal document claims this option would have found “a larger number of illegal immigrants” but also noted the number of undocumented immigrants in administration records is “likely to be low.”
“It just shows the lengths they were willing to go to potentially do this and willingly face legal challenges,” Ford said.
When asked for comment, a Census Bureau spokesperson pointed to the agency's January statement. It said the agency would implement Biden’s executive order, which directs the agency “not to include information on citizenship or immigration status.”