How the U.S. Constitution Trumps Donald Trump’s Census Order

About 13 months after the United States Supreme Court slapped down his attempt to add a citizenship question to the U.S. Census, Donald Trump on July 21 signed a memo instructing the Census Bureau to simply drop undocumented immigrants from its count, according to a CNN report. The order was quickly condemned by California Governor Gavin Newsom as “rooted in racism and xenophobia.”

Whether Trump’s order would pass a constitutionality test remains an open question. The Constitution requires that all “persons” be counted in the census, drawing no difference between citizens and non-citizens.

In addition to being Trump’s latest attack on immigrants, his order is also directed squarely at California, which may end up with weakened representation in the U.S. House of Representatives as a result. According to a report by Kim Bojórquez of the Sacramento Bee, if Trump’s order were to be upheld by the courts, the more than 2 million undocumented immigrants in California would disappear from the census count, costing the state a seat in the U.S. House.

California, home to about 20 percent of the country’s estimated 10.6 million undocumented immigrants, currently holds 52 seats in the House, 12 percent of all of the body’s voting members. The state also has a vacant House seat, bringing the total to 53 once that seat, in the 25th District  just north of Los Angeles, is filled.

The state remains heavily Democratic, with Dems claiming 45 of those House seats, to only seven Republicans. 

Perhaps of equal importance, losing a House seat would cost California a seat in the Electoral College as well, meaning that the state would have a somewhat reduced say in determining who becomes president.

Due to a declining birth rate, and shifts in migration trends, California’s population is already on the wane. In fact, 2018 saw the state’s slowest population growth ever, just 0.47 percent, according to a separate Bee report. The slowdown put California in danger of losing a House seat, and an Electoral College member, even before Trump’s order potentially striking 2 million people from the state’s population rolls. 

Because immigrants generally gravitate toward urban areas, according to an L.A. Times report by Chris Megerian and Sarah D. Wire, Trump’s order dropping undocumented people from the census count “could also shift power toward whiter, more rural areas of states at the expense of more diverse cities.”

The order states that the “exclusion of illegal aliens” is warranted by “respect for the law and protection of the integrity of the democratic process,” as quoted by the Times report.

Some demographers cited by the Times say that the move could actually cost California more than one House seat. An analysis by Ian Millheiser of Vox.com found that California could lose up to three seats.

The state of Texas could also lose at least one seat, while Florida and New York also have large immigrant populations and could be adversely affected.

U.S. Constitution: ‘Count All Persons’

Whether Trump’s order will ever be put into action, however, remains up in the air. With the “citizenship question” disallowed by the Supreme Court, the Census Bureau appears to have no practical way to distinguish undocumented immigrants from anyone else. The definitive refutation of the census order, however, may come from the U.S. Constitution itself.

The 14th Amendment to the Constitution specifies that the number of congressional representatives in a state will be calculated by “counting the whole number of persons in each state.” Other than specifically excluding “Indians not taxed,” the 14th Amendment makes no distinction between immigrants, documented or otherwise, and citizens when it comes to “counting the whole number of persons.”

With his new census order, Trump has effectively taken upon himself the decision as to who counts as a “person” in the United States. According to Millheiser, Trump’s memo cites a 1992 Supreme Court decision, Franklin v. Massachusetts, which allowed a president “his accustomed supervisory powers over his executive officers” in operating the census. Trump claims that the SCOTUS decision gives him the power to determine how the census data is transmitted to Congress, which ultimately has the responsibility to compile the final census count.

Just because a president has some limited power to supervise the census, Trump does not have the power to “rewrite the Constitution" by determining who qualifies as a person, Common Cause President Karen Hobart Flynn said in a statement.

Trump’s memo offers no legal justification of why he alone has the power to make that decision, or to decide who qualifies as an “inhabitant” of a state, according to Millheiser’s analysis. While transient residents such as tourists, visiting businessmen and diplomats are not considered “inhabitants” and therefore not counted in the census, most undocumented immigrants have resided in the U.S. for a substantial period of time—more than 15 years, according to data cited in the Vox.com analysis.

“The Constitution requires that everyone in the U.S. be counted in the census. President Trump can’t pick and choose,” American Civil Liberties Union voting rights activist Dale Ho told the L.A. Times. “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 census count has been under way since March, and nearly two-thirds of U.S. households have already responded, the Times reported.