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Trump losing battle to exclude ‘illegal aliens’ from count toward seats in Congress

By David Pendered

A federal court in Maryland on Nov. 6 struck down President Trump’s order that “illegal aliens” be excluded from the Census count that’s used to award congressional seats to each state. The administration has appealed to the Supreme Court.

Georgia’s influence in Congress will reflect the outcome of the Census report due in January 2021. File/Credit: Martin Falbisoner via wikimedia.org

In addition, the order has suffered another setback – this one within the Census Bureau. The Census doesn’t expect to complete Trump’s order in time for it to be included in the apportionment report the president is required to deliver to Congress the first week in January. The report states the population in each state and the number of House seats to which each state is entitled.

The future of the nation’s politics and governance is influenced by the Census count.

From a political perspective, the count will determine which states gain and lose House members, and with that the related number of electors in the Electoral College – which casts the actual ballots for president. In terms of governance of the House of Representatives, the count will determine the relative influence of each state, as well as the influence of urban and rural areas over the nation’s agenda.

The future of the president’s order may be moot. President-elect Joe Biden is to be sworn into office on Jan. 20, 2021. A Biden administration could revoke the order and drop the appeal.

Meanwhile, two issues are at play here.

First, the technical issue within the Census Bureau.

The timeline for Census data to be provided for use in assigning congressional seats and redistricting is set out in Federal Code. Credit: crsreports.congresss.gov

The Census has said it is not prioritizing Trump’s order to extract undocumented immigrants from the population count for congressional apportionment that it will deliver to the president. Trump’s order is not a mandate, as is the Dec. 31 deadline for the population report from the Census to the president. This deadline enables the president to meet a federal mandate to deliver the Census report to Congress in the first week of January 2021, as specified in the Federal Code.

However, the Census doesn’t expect to meet its Dec. 31 deadline. Early to mid January is more likely. Only after that report is complete will the Census turn to complying with Trump’s order to extract undocumented immigrants from this data, Albert Fortenot, the Census’ associate director for Decennial Programs, said in an Oct. 21 talk with reporters, according to a transcript.

Second, the legal issue.

On Nov. 6, three days after the election, a U.S. District Court in Maryland struck down Trump’s order, the third such ruling against the order. Trump’s administration immediately filed a notice of appeal with the Supreme Court.

Yehimi Cambrón, SCOTUS, DACA

Atlanta artist Yehimi Cambrón demonstrated in support of a Supreme Court ruling in favor of young undocumented immigrants. President Trump later issued an order related to undocumented immigrants and the Census. File/Credit: facebook.com/ycambron/

A panel of three judges flatly rejected the premise of Trump’s order and chastised the Justice Department for supporting the president’s position. But not without a history lesson that places the intent of Trump’s memo far outside the realm of U.S. democracy. The ruling’s opening remarks observe:

  • “Since the first census in 1790, every census and apportionment has accounted for the total persons in each state, without respect to immigration status. And until July 2020, no branch of the federal government ever had taken the position that non-citizen residents of the United States could be lawfully excluded, based on their immigration status, from the apportionment base.”

The ruling contends that Congress created an apportionment scheme that bans a president from meddling in the Census numbers. Then the ruling turns to the Justice Department:

  • “And until now, the Department of Justice has acknowledged as much, consistently taking the position that the President’s statement to Congress regarding apportionment has to be based solely on the tabulations of total population produced by the census.”

The order in question is part of Trump’s expansive campaign to reduce immigration and related results.

One effort involves halting undocumented immigration at the southern border and, now, trying to extract data about those who entered the country without documentation from the Census count that’s used to award congressional seats. Trump’s order doesn’t object to including undocumented immigrants in the Census report, just from count them in the awarding of congressional seats.

Trump’s memo of July 21 contends that some state governments extend a welcome to undocumented immigrants, and then intend to benefit from the additional congressional representation associated with their inclusion in the Census count:

  • “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”

According to the memo, one unnamed state has attracted more than 2.2 million undocumented immigrants. If they are counted in the apportionment, the state will be eligible for “two or three more seats than would otherwise be allotted.”

David Pendered

David Pendered, Managing Editor, is an Atlanta journalist with more than 30 years experience reporting on the region’s urban affairs, from Atlanta City Hall to the state Capitol. Since 2008, he has written for print and digital publications, and advised on media and governmental affairs. Previously, he spent more than 26 years with The Atlanta Journal-Constitution and won awards for his coverage of schools and urban development. David graduated from North Carolina State University and was a Western Knight Center Fellow.


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