President Donald Trump signed a memo Tuesday that aims to bar undocumented immigrants living in the country from being included in the census for purposes of deciding how many members of Congress are apportioned to each state.
Trump said in the memo that 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."
The memo directs Commerce Secretary Wilbur Ross, who oversees the census, to provide the president with data about the number of people who are undocumented so that when census officials present the president with the final count, the president can exclude them from the population totals used to determine how many House seats each state will have.
Trump said in a statement Tuesday, "We will collect all of the information we need to conduct an accurate census and to make responsible decisions about public policy, voting rights, and representation in Congress."
The administration argues that the Constitution does not specifically define which "persons" must be included in the apportionment base, noting that documented immigrants who are in the country temporarily and certain foreign diplomatic personnel are "persons" who have been excluded from the apportionment base in past censuses.
It was not immediately clear how undocumented immigrants would be identified. The census questionnaire, which was distributed in March, did not require respondents to indicate whether they or others in their households are citizens.
The administration tried last year to add a citizenship question for the first time in 60 years, but the Supreme Court blocked the Commerce Department. Chief Justice John Roberts joined the four-member liberal wing of the court and said the administration's rationale for adding the question was "contrived."
The census results are used to determine the number of seats in the House each state is allocated, and it affects the dispersal of billions of federal dollars. Proposals to omit undocumented immigrants have been criticized as efforts to reduce aid to states with large immigrant populations and to reduce the political clout of those areas, which are heavily represented by Democrats.
Trump's order is likely to prompt legal challenges from Democratic-controlled states that brought the lawsuit challenging the citizenship question. Opponents argued that a citizenship question would discourage all immigrants from responding and jeopardize the constitutionally mandated count.
The Constitution directs Congress to conduct a census count of "persons" living in the U.S., and it does not distinguish between citizens and noncitizens. The Supreme Court has not directly ruled on whether "persons" includes immigrants, but lower courts have said undocumented immigrants should be counted.
"The resident population counts include all people (citizens and non-citizens) who are living in the United States at the time of the census," according to the Census Bureau's website. "People are counted at their usual residence, which is the place where they live and sleep most of the time."
Immigrant rights and civil liberties groups excoriated the administration.
"The Constitution requires that everyone in the U.S. be counted in the census. President Trump can't pick and choose," said Dale Ho, director of the American Civil Liberties Union's Voting Rights Project, who argued the Supreme Court case blocking the administration from adding a citizenship question.
"He tried to add a citizenship question to the census and lost in the Supreme Court," Ho said. "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."
Krish O'Mara Vignarajah, president of the Lutheran Immigration and Refugee Service, one of the largest and oldest refugee resettlement organizations in the country, said in a statement that the policy would punish both undocumented and documented immigrants.
"This odious executive order reaffirms what we already knew: this White House does not see immigrants as people," she said. "The inhumanity of the order alone is astounding. But its implications for our nation — for the millions of people who won't be accounted for in public funding for schools, hospitals, or emergency services, among others — is simply unconscionable."
Trump railed against the Supreme Court decision, but the Census Bureau printed and mailed questionnaires with only the standard questions about race, age, sex and household size. However, soon after the court defeat last year, the administration was viewed as trying to circumvent the decision and began asking states for drivers' license records, which often include citizenship data, The Associated Press reported.
While the census count began in March, the timeline for completion has been delayed and updated because of the COVID-19 outbreak, and a final count is now expected to be delivered next year. People could respond to the census online for the first time this year.
This week, the Census Bureau began sending staff members to households that have not responded. The bureau reported that as of Monday, a little over 62 percent of U.S. households had completed their census forms.
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Democratic lawmakers also issued scathing statements, arguing that the administration's decision is unconstitutional and would impair ongoing census work, as well as make immigrant communities afraid.
"Trump's unlawful effort is designed to again inject fear and distrust into vulnerable and traditionally undercounted communities, while sowing chaos with the Census," House Speaker Nancy Pelosi, D-Calif., said in a statement. "The House of Representatives will vigorously contest the President's unconstitutional and unlawful attempt to impair the Census."
Rep. Carolyn Maloney, D-N.Y., chair of the Oversight and Reform Committee, which has acted as a watchdog over census operations, called the move "egregious and sinister."
Senate Minority Leader Chuck Schumer, D-N.Y., called the memo "yet another racially driven attack by a president" against immigrants.
"This order isn't worth the paper it's printed on and will be struck down by the courts," he said.