The Trump administration signed a memorandum Tuesday in support of barring undocumented immigrants from being counted for congressional apportionment next year.
“For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the memo said.
But legal and census experts said such an order would be impossible to implement, either lawfully or practically.
“It’s patently unconstitutional,” said Thomas Wolf, senior counsel and Spitzer fellow at the Brennan Center for Justice at New York University’s School of Law. For apportionment, Section 2 of the 14th Amendment requires a count of all persons, he said.
“Persons means people. Everyone must be counted . . . regardless of race or ethnicity or citizenship status,” he said, adding that implementing what the president proposes “would be asking every American to disregard the plain text of the Constitution and ignore what their eyes tell them about what the law and the American Constitution is about. It’s another example of the Trump administration putting some ill-conceived notion of ideology or self-interest ahead of the country.”
In addition to congressional apportionment, data from the 2020 Census, which is underway, will be used to determine state redistricting and $1.5 trillion a year in federal funding.