Even as the Trump administration is heading out the door, President Trump is trying to exclude undocumented immigrants from the decennial census. If he succeeds, it will be the first time unauthorized immigrants will not be counted for purposes of drawing new congressional districts.
Three lower courts have ruled unanimously that the president's action violates either the Constitution, the federal census statute, or both. On Monday the U.S. Supreme Court hears arguments in one of those cases — from New York.
The start of the U.S. census
The United States was the first country to put a mandatory national population count into its Constitution. The plan was to count every person living in the newly created United States of America, and to use that count to allocate how many votes each state would get in the House of Representatives and the Electoral College.
The census was to be a reflection of "We the People" in the preamble to the Constitution, according to Margo Anderson, perhaps the leading census historian in the country, and author of The American Census: A Social History. She says that when the Founding Fathers convened for the Constitutional Convention, the question was, "How do we measure 'the People?'... Should we do voters? Should we do property owners? Should we do this? Should we do that? And they decided ... look, let's count everybody and be done with it."
The Constitution's "Great Compromise" was that every state would receive two senators, no matter what the state's population, and the House of Representatives and Electoral College would be apportioned to represent the "whole number of persons" counted in the census of each state.
There were only two exceptions: Native Americans living on tribal lands, who did not pay taxes to the U.S. government, were deemed part of a different sovereign nation; and the enslaved population in the South was counted but each slave counted only as three-fifths of a person. That changed after the Civil War when the Fourteenth Amendment counted the former slaves as whole persons, too.
In fact the framers of the Fourteenth Amendment firmly rejected attempts to change the apportionment base from a whole population count to a count based on voting eligibility or citizenship. As Rep. James Blaine of Maine said at the time, "Women, children, and other non-voting classes" may have "as vital an interest in the legislation of the country" as those who actually have the right to vote.
The result has been that, as census historian Anderson observes, no census has ever been conducted that did not aim to count everyone on U.S. soil, regardless of immigration status.
Trump tries to change the census
In July Trump issued a memorandum ordering the Census Bureau to send him two sets of numbers. The first set was for the whole number of persons in each state. And the second set — for apportionment of the number of seats in each state — was to subtract the number of undocumented immigrants from the total count.
As the memorandum candidly admitted, that might mean that California, for instance, would lose two congressional seats. Trump's stated aim was to "not reward" states where large numbers of undocumented immigrants live.
"That's illegal," says the ACLU's Dale Ho, who represents a coalition of immigrant-rights groups. It's illegal, he maintains, "because the Constitution and federal statutes require the House to be divvied up according to the census," including everyone in the total population.
The ACLU and 22 states, led by New York, are challenging the president's order.
"The decision that the Founders made, [and] that the Framers of the Fourteenth Amendment made, was that states get representation in Congress based on the number of people that they are responsible for and have to represent," Ho says. "And it doesn't matter whether those people are voters or not, if they're citizens or not, or what their immigration status is or not."
And he adds that one reason for linking apportionment to the census was to set an objective standard and prevent political manipulation of the process of determining how many congressional seats are allocated for each state.
The Trump administration, however, contends that under the federal law governing the census the president has "unfettered discretion as to what data will be used" when it comes to who counts for purposes of apportionment.
Interestingly, the usual red-state coalition that in other cases has supported the administration in the Supreme Court is not present in this case.
Texas, Florida, Arizona and other Republican-dominated states that usually support the Trump administration's legal positions are missing in action. That is because they might well lose congressional seats and Electoral College votes if Trump prevails.
So far the president has lost his argument in three lower courts, with both Democratic and Republican-appointed judges ruling against him unanimously.
Just 10 states — accounting for a mere 52 congressional seats and Electoral College votes — are siding with the administration. Among them is Alabama, which would likely lose a seat if the usual census procedures are followed.
Alabama Solicitor General Edmund LaCour Jr. echoes some of the themes in the Trump administration's argument. He maintains that the Constitution's mandate to count the "whole number of persons" for the census actually meant counting "inhabitants." And he argues that the Founding Fathers would have viewed inhabitants as people who have permission from the sovereign to be in the U.S., and who have publicly stated they intend to remain here.
"Our argument is that illegal aliens do not meet either of those requirements," says LaCour. "They are not here by permission of the federal government ... and therefore they are not inhabitants, as the Framers would have understood it when deciding to divide up federal power among the states."
Alabama in fact goes further than the Trump Administration, contending, in essence that every previous census has been unconstitutional because they all counted individuals not authorized to be in the U.S.
LaCour notes that the concept of illegal immigration did not really exist when the Constitution was written. That is because the Unites States very much wanted people to immigrate back then.
Still, as census historians note, even after the first law was passed restricting immigration in 1875, and after the Chinese exclusion laws were passed, the census still continued to count everyone, whether here legally or not, for purposes of apportioning congressional districts.
The only hiccough in the census system came in 1920 when a gridlocked Congress refused to reapportion itself, leaving the seats apportioned as they were in 1910. As a result of that stalemate, Congress in 1929 passed a law creating an automatic reapportionment system, based on a census count of the "whole number of persons" in each state; it called for those numbers to be reported to the president, who in turn would, according to the numbers, allocate the number of congressional seats in each state, and within a week of a new Congress convening, report those numbers to the clerk of the House of Representatives for certification.
Pandemic affects census count timeline
And that is where Monday's case runs into some extra wrinkles. Because of the COVID-19 pandemic, the Census Bureau has already indicated it likely will not be able to meet the usual Dec. 31 deadline for reporting the new state population figures to the president.
Census workers have simply not been able to make as many visits to homes that have not returned census forms. Because the Census Bureau's major work was to occur just when the pandemic led to lockdowns and because of last-minute changes by the Trump administration the bureau has not had enough time to finish processing and checking its figures. Earliest estimates for completing the job are for the end of January.
And that's just for the regular census tabulations. But the bureau has not been able come up with a way to ascertain with any precision what portion of those people living in each state are not there legally.
Even if the Census Bureau is able to meet the usual Dec. 31 deadline, which seems increasingly unlikely, Trump, by law, has just 10 days to carry out what is termed his "ministerial duty" to convey to Congress how many congressional seats each state is supposed to get.
Bottom line: Trump may not be able to send reliable figures to the House for certification before he leaves office. And if he does send figures that do not include all residents counted by the census, the House might well refuse to certify those figures, leaving the completion of the census and the task of assigning the number of congressional seats based on total population in each state to the Biden administration.