Trump can't exclude undocumented immigrants from census, judges rule
The Trump administration was blocked on Thursday from excluding undocumented immigrants from the census totals used to determine how many seats in Congress each state gets.
Donald Trump acted unlawfully in July when he ordered the commerce department to produce data that would allow him to exclude undocumented immigrants from the count, a panel of three judges said. Federal law is clear that only a single data source – the census count of total population – can be used to apportion the 435 seats in the US House among states, the judges wrote. The decennial census does not ask about citizenship status and by requesting a second set of data outside of the decennial census, Trump ran afoul of the law.
“Congress mandated that the president use a specific set of numbers – those produced by the decennial census itself – for purposes of the reapportionment,” the panel wrote. “By deviating from that mandate, the presidential memorandum exceeds the authority of the president.” The three judges who issued the unanimous ruling were the US district judge Jesse Furman, an appointee of Barack Obama and appellate judges Peter Hall and Richard Wesley, George W Bush appointees.
The decision, which is likely to be appealed to the US supreme court, is a major legal win for the civil rights and immigration groups, as well as nearly two dozen states and several cities, that challenged the law. The federal government has long included immigrants, regardless of their legal status, in the apportionment count and excluding them was understood as an unmistakable effort to preserve political power for white Americans.
“This is a huge victory for voting rights and for immigrants’ rights. President Trump has tried and failed yet again to weaponize the census against immigrant communities,” said Dale Ho, the director of the Voting Rights Project at the American Civil Liberties Union, which helped represent some of the plaintiffs. “The law is clear – every person counts in the census.”
The ruling is the latest development in an ongoing legal battle over the 2020 census. The US supreme court blocked an effort to add a citizenship question to the decennial survey last year and there are ongoing legal challenges seeking to force the Trump administration to extend the deadline for counting Americans.
Federal law also requires apportionment to be based on the number of “persons in each state” – a phrase the Trump administration argued did not include undocumented people. The panel dismissed that argument, noting that Congress had explicitly chosen not to exclude undocumented people from the apportionment base.
“Since 1929 (if not before), the consistent view of both political branches has been that Section 2a,
if not the constitution, requires the inclusion of all residents in the apportionment base, without regard for their legal status,” they wrote. “When pressed at oral argument to cite ‘any instance, any support . . . in the historical record’ for the proposition that the President has discretion under Section 2a to exclude illegal aliens from the apportionment base, defense counsel came up empty.”
The justice department did not immediately respond to a request for comment on the ruling.