Trump’s Memo on Census Excluding Illegal Immigrants Is ‘Unlawful,’ Judges Say

September 11, 2020 Updated: September 11, 2020

A panel of judges have declared unlawful an order from President Donald Trump that excludes illegal immigrants from calculations used to apportion congressional seats based on the population survey conducted during the 2020 Census.

The three judges for the U.S. District Court for the Southern District of New York unanimously ruled that Trump’s presidential memorandum issued on July 21 is in “violation of Congress’s delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers.”

The judges’ 86-page decision (pdf) said that federal law required the use of one set of numbers to count people for the census and in the process of redrawing congressional districts, known as apportionment. So long as the illegal immigrants are living in the United States, “illegal aliens qualify as ‘persons in’ a ‘state'” who should be counted, the judges wrote.

The judges panel consisted of Circuit Judges Richard Wesley and Peter Hall, both appointed to the bench by Republican President George W. Bush, and District Judge Jesse Furman, an appointee of Democratic President Barack Obama.

The decision can be appealed in the U.S. Supreme Court.

President Donald Trump
President Donald Trump talks to holds up his face mask during a press conference in the Brady Press Briefing Room at the White House in Washington, on July 21, 2020. (Chip Somodevilla/Getty Images)

Trump on July 21 declared in his memorandum that “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status,” citing the Immigration and Nationality Act.

He ordered the Secretary of Commerce report from the 2020 Census two sets of numbers for each state: the total count of the population as determined in the 2020 census, and the total population minus the number of illegal immigrants. The latter number would be used to apportion congressional seats.

The judges wrote in their decision that the second number, which omits the number of illegal immigrants, “would not come from the census itself, as the 2020 census is not collecting information regarding citizenship status, let alone legal immigration status in this country.”

The judges granted an injunction prohibiting Trump from taking any further action to implement the memorandum, which prevents the Secretary of Commerce from reporting any information about illegal immigrants in its census count.

“Throughout the Nation’s history, the figures used to determine the apportionment of Congress—in the language of the current statutes, the ‘total population’ and the ‘whole number of persons’ in each State—have included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without,” the judges wrote.

Epoch Times Photo
A worker gets ready to pass out instructions in how fill out the 2020 census during a town hall meeting in Lithonia, Ga., on Aug. 13, 2019. (John Amis, File/AP Photo)

The judges declined to say whether the memo violated the Constitution, writing, “Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself.”

The plaintiffs were 38 mostly Democrat-leaning states, cities, and counties, plus several immigrants rights nonprofits, that sued over the July memo, contending that it was “motivated by discriminatory animus toward Hispanics and immigrant communities of color.”

Plaintiffs contended that the memo could leave millions of people uncounted and shift a few seats in the House, with California, Texas, and New Jersey most likely to suffer losses.

The judges wrote that they didn’t need to rely on speculations that a given state would possibly lose congressional seats over illegal immigrants being excluded in the apportionment process.

They said that “fear and confusion” caused by the July memo served to create confusion among the illegal immigrants and deterred their participation in the census, and that the resultant harm to the census data was enough to justify the ruling, the judges wrote.

The American Civil Liberties Union—one of the groups that challenged the presidential memo—wrote in a statement, “We just beat Trump’s latest attack on the Census and immigrant communities. The law is clear: Everyone gets counted in the Census—you can’t pick and choose.”

New York Attorney General Letitia James, who brought the challenge with the states, counties, and groups against the July memorandum, praised the ruling.

“President Trump’s repeated attempts to hinder, impair, and prejudice an accurate census and the subsequent apportionment have failed once again,” James said in a statement to Reuters.

James noted that the federal court in New York had previously ruled against the Trump administration in its failed attempt to add a citizenship question to the 2020 census. That case went to the Supreme Court which blocked the citizenship question from being added.

“The courts have ruled in our favor on every census matter in the last two years and continually rejected President Trump’s unlawful efforts to manipulate the census for political purposes,” James told The Associated Press.

The White House and the Department of Commerce, which oversees the census, did not immediately respond to requests for comment when reached by Reuters.

The Associated Press and Reuters contributed to this report.

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