Can Trump Subtract Illegal Immigrants from the Census?

A person holds Census information at an event in New York City, February 22, 2020. (Andrew Kelly / Reuters)
Implications of a new memo

NRPLUS MEMBER ARTICLE T he 2020 census is already underway, and it famously does not include a citizenship question — which states could have used to draw districts based on citizen population rather than total population. But now the administration has announced another idea to address the nexus between voting and immigration: “To the maximum extent feasible and consistent with the discretion delegated to the executive branch,” it will try to remove illegal immigrants specifically from the numbers used to determine how many House seats each state is given to begin with.

To what extent is this indeed feasible and consistent with the law? Here is a very brief overview of the administration’s apparent plan, its arguments supporting the proposal, and the very difficult hurdles.

With the census almost two-thirds complete — and not gathering information on citizenship or legal status — it wouldn’t be possible for the census to simply not count illegal immigrants, or to remove illegal immigrants from the tally based directly on the data it collects. Instead, the plan appears to be to estimate the illegal-immigrant population using other sources and then subtract that population from the count. Here’s how the new memo puts it:

In Executive Order 13880 . . . I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country.  As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the purpose of conducting the apportionment, and we intended to examine that issue.

There are practical obstacles to doing this. The administration would have to match census information to other data (Social Security, passport records, etc.) to figure out who’s here legally, and it would have to do so quickly. Any limitations of those other data could lead to errors.

Several important precedents, stemming both from the Constitution and from federal law, deal with the question of what kinds of estimation techniques can be used to adjust census data for apportionment purposes, even when the goal is to estimate the population accurately rather than exclude a subset of people. So the accuracy of any adjustment could be not just a practical issue, but also a legal one.

And that’s not the only legal issue. While the Constitution says little about how states draw districts, it does explicitly lay out how states are to be assigned a total number of House seats. The 14th Amendment states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Just four years ago, a unanimous Supreme Court decision stated that “the Framers endorsed allocating House seats to States based on total population.”

Yet as the White House notes, there is some wiggle room inherent in the term “whole number of persons in each State”:

For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are “persons” who have been excluded from the apportionment base in past censuses.  Conversely, the Constitution also has never been understood to exclude every person who is not physically “in” a State at the time of the census.  For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record.

Further, federal law gives the executive branch discretion in conducting the apportionment and providing the numbers to Congress. But is the discretion so wide that illegal immigrants in general could be considered not “persons in each State”? The memo does not make a particularly detailed case for this proposition, but I believe there’s a strong hint of the underlying reasoning in its statement that “the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included.”

This might reference an argument that David B. Rivkin Jr. and Richard Raile made last year in the Wall Street Journal. They explained:

The draft Constitution required that seats be apportioned according to the number of “inhabitants” per State. That was the word used in the text, and framing debates, until the Convention’s Committee of Style and Arrangement substituted “persons.” But the high court made clear in Powell v. McCormack (1969) that any changes made by that committee were stylistic and not substantive. Further, the term “inhabitant” means more than mere physical presence. Webster’s 1828 dictionary defines it as someone with “a fixed residence” or who “resides permanently in a place.” In law, “inhabitant” was someone “who has a legal settlement in a town, city or parish” such that the person, “if a pauper,” was entitled to financial assistance there.

That mattered in the late 18th and early 19th centuries because the contemporary welfare system was administered at the local level and tied individuals to a political subdivision under a doctrine called “inhabitancy,” discussed in Blackstone’s commentaries on English law, which informed the Constitution’s drafters. . . .

Until the late 19th century, no federal law regulated immigration, and aliens could arrive and remain at will. Subsequently, however, Congress exercised its power over immigration and naturalization to define the nation’s political community, as well as entitlement to government benefits. Today, anyone who enters the U.S. unlawfully is subject to involuntary removal and thus cannot be considered an inhabitant in the constitutional sense.

It’s a clever argument, and it also appears in a lawsuit from the state of Alabama. But the obvious issue is that the final Constitution says “persons,” not “inhabitants,” and I doubt that all five conservative justices on the current Supreme Court will be willing to look to the latter term rather than the former when interpreting the language. And of course, it’s rather hard to argue that illegal immigrants living in a state are not persons in the state — though Alabama tries, claiming that “persons” means “members of ‘the people,’” i.e. of the political community.

We could be in for a court fight over all this, so stay tuned.

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