Last year, the White House failed in its attempt to add a citizenship question to the 2020 Census, a change that would have caused 6.5 million fewer people to respond, according to the Trump administration’s own estimates. The effort to discourage undocumented families from filling out the form was a synthesis of Trump’s interests, stripping immigrants of their protections while potentially skewing the post-Census reapportionment of House seats in his party’s favor. After the citizenship question was knocked down by the Supreme Court last summer, Trump vowed to use data provided by other federal agencies to determine the “number of citizens and noncitizens in our country.”
On Tuesday, the White House used that data, despite its questionable accuracy, as part of an executive order banning undocumented immigrants from the Census count determining how many members of Congress are apportioned to each state. The memo requires Wilbur Ross — the head of the Department of Commerce, which oversees the Census — to provide Trump with data collected by the Department of Homeland Security so the White House can subtract the number of undocumented Americans from the Census’s population total to determine how many seats each state will have in Congress.
Trump’s order states that “illegal aliens are not to be included for the purpose of apportionment of Representatives following the 2020 Census.” However, his language appears to be in direct violation of the second clause of the 14th Amendment, which determines that the Census must count “the whole number of persons in each State.” Because the Constitution does not determine between citizens and noncitizens, it is likely that Trump’s order will be overturned; already Dale Ho, director of the ACLU’s Voting Rights Project, announced the group would sue the administration over the effort. “His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional,” Ho said in a statement.
Democrats also condemned the effort, seen as a last-minute ruling “designed to again inject fear and distrust into vulnerable and traditionally undercounted communities,” according to House Speaker Nancy Pelosi, who promised to “vigorously contest the president’s unconstitutional and unlawful attempt to impair the Census.” Senate Minority Leader Chuck Schumer added that the order was “yet another racially driven attack by a president and administration that wrongly views immigrants as the enemy, when they are a vital part of our society.”