Trump's census order is an unconstitutional coronavirus distraction

Trump is not one to back down from a legal fight — even when the weight of the law is against him — if it can lead to a political win.
Demonstrators rally at the U.S. Supreme Court
Demonstrators rally at the Supreme Court in April 2019 to protest a proposal to add a citizenship question in the 2020 census.Mandel Ngan / AFP - Getty Images file
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By Jessica Levinson, professor at Loyola Law School

Does President Donald Trump’s desire to write immigrants out of our national story know no legal or ethical bounds? Trump seems willing to pull, push and break all the levers of power that he has to decrease immigrant power (and, thus, Democratic voting power). If you’d like to know how he’s trying to skew representation this month, look no further than Trump’s latest executive order.

If you’d like to know how he’s attempting to skew representation this month, look no further than Trump’s latest executive order.

On Tuesday, Trump signed an executive order directing the Department of Commerce not to count undocumented immigrants when drawing congressional district lines. This is part of a concerted effort by the Trump administration to use the Department of Commerce and its power over the census to achieve partisan political gains.

It was not so long ago that the Trump administration tried to add a citizenship question to the census. This would, according to immigrant advocates, have chilled immigrants from responding to the census, and lead to a significant undercount in certain (read Democratic) areas. Trump claimed he needed this citizenship information to enforce the Voting Rights Act, a claim that doesn’t even pass the laugh test.

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That move by the Trump administration was thwarted by the Supreme Court. The court concluded that the Department of Commerce’s explanation for why it wanted to add a citizenship question to the census was “incongruent with what the record reveals about the agency’s priorities and decisionmaking process.” That is legal speak for lying.

But Trump is not one to back down from a legal fight, even when the weight of the law is against him, if it can lead to a political win. Trump’s unconstitutional attempt to only count people who legally reside in our country is about partisan politics, not “respect for the law and protection of the integrity of the democratic process,” as Trump claimed in the order.

First, Trump’s executive order has the immediate benefit of creating a conversation about the census, and not the pandemic. The more we talk about this lack of leadership on the federal level, the more Trump’s poll numbers plummet. Welcome to an elaborate game of distraction. Don’t look behind door No. 1, which holds America’s mounting death toll. Instead, look behind door No. 2, where the Trump administration is trying to prop up Republican voting power.

Second, Trump’s directive is a pile of red meat for his base who will no doubt welcome weaponizing the Department of Commerce to increase Republican voting power. Never mind that the meat is filled with salmonella.

Let’s remember what the census is and why it matters. Every 10 years we count how many people live in our country. This determines two deeply important things for states — money and people. The federal government apportions federal funds and congressional representatives based on how many people live in each state. The fewer the people, the fewer the funds and representatives. If Trump’s order were put into effect, it would likely decrease the number of congressional seats in Democratic states, like California, and move those seats to Republican states.

But under the U.S. Constitution, congressional representation is based on “counting the whole number of persons in each State.” As it turns out, there is no carve out for noncitizens. Attorney General William Barr must acknowledge this much. A 1989 opinion from the Department of Justice, which was led by Barr at the time, acknowledges that under the Constitution, “inhabitants of States who are illegal aliens [must] be included in the census count.”

None of this includes the administrative nightmare, and likely impossibility, of actually determining who is legally and illegally in this country. None of this acknowledges the fact that this may in fact be Congress’ purview.

But that may not be the point. If the point is to continue to scare members of the immigrant population and stop them from even responding to the census, the goal is imminently achievable — to the extent it wasn’t already achieved by the Trump administration’s attempt to add a citizenship question to the census. When and if this executive order is struck down in the courts, it may already have had its intended impact on Democratic voting power and immigrant enfranchisement.

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