California Officials Blast Trump’s Order Excluding Undocumented From Census Count

Protesters gathered outside the U.S. Supreme Court on April 23, 2019 in Washington DC. The court later blocked the Trump administration from including a citizenship question in the 2020 Census. (Win McNamee/Getty Images)

President Trump signed a memorandum on Tuesday to exclude undocumented immigrants from the U.S. Census count that determines the states' political representation, arguing that including them undermines democracy for American citizens. Hours later, several California elected officials, including House Speaker Nancy Pelosi and Gov. Gavin Newsom, swiftly condemned the president’s directive as plainly unlawful.

“Counting every person in our country through the Census is a principle so foundational that it is written into our Constitution,” Newsom said in a statement. “This latest action by the administration to exclude undocumented immigrants when determining representation in Congress, rooted in racism and xenophobia, is a blatant attack on our institutions and our neighbors.”

The 2020 Census

The U.S. Constitution’s 14th Amendment says representatives shall be apportioned among states, counting “the whole number of persons in each state.”

But Trump argues that the term has been interpreted to mean “inhabitants” of each state, and that the executive branch can decide who qualifies as such to conclude how many seats a state gets in the House of Representatives.

“Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure lawful immigration status under our laws undermines (democratic) principles,” according to the President’s memorandum.

The order also took a swing at so-called sanctuary laws, saying states that adopt them attract illegal immigrants and “should not be rewarded with greater representation in the House of Representatives.” The president then referred to California, with an estimated 2.2 million undocumented immigrants, as “one state” exemplifying the problem.

“Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated,” Trump said.

Congresswoman Anna Eshoo, D-Palo Alto, who sits on the House committee overseeing the U.S. Census Bureau, said the president’s new policy was meant to energize his supporters before the November election and rob political representation from California, which has the nation’s largest population of undocumented residents.

“That would be a dream come true for Donald Trump because he doesn't think that any of these people count in life anyway,” Eshoo said. “This is clearly a move that is unconstitutional. And I think the president, frankly, is throwing red meat to his base.”

Last year, California and other states successfully sued to block the administration from including a question on citizenship in the census. Critics argued that it would depress participation among non-citizens and that states such as California would lose a big share of the more than $675 billion in federal funds distributed on the basis of population.

On Tuesday, Trump instructed Secretary of Commerce Wilbur Ross — who oversees the Census Bureau — to “provide information” to carry out the policy of excluding undocumented immigrants from congressional apportionment.

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A White House official declined to comment further on how the administration could achieve the president’s goal. The official, who declined to be named, defended Trump’s new policy.

“These actions are consistent with America’s democratic principles as outlined in the United States Constitution,” said the official in a statement. “President Trump will never allow the erosion of our Nation’s democracy or the underrepresentation of lawful American citizens.”

By law, the Census Bureau may not share an individual’s information with immigration enforcement or other federal agencies.

But with the census already underway, the president’s directive could make it even harder to achieve a full and accurate count of non-citizens and their households, said Julia Marks, an attorney with the Asian Law Caucus in San Francisco.

“This has been an extraordinarily difficult census because of the public health situation and because of existing statements from the Trump administration that makes this a scary environment for immigrant communities,” said Marks, whose organization does outreach to increase participation in the Census. “And this will just make some of those challenges even greater.”

California is already facing the loss of one congressional seat, largely because the state’s population growth has slowed down.

Historically, Black, brown and immigrant communities have not been fully counted in the Census, leading to a smaller share of federal funds for schools, hospitals, roads and other critical needs in their local communities.

California would lose more than $1,000 per year for every person who is not counted in the decennial census, said state Sen. Tom Umberg, D-Santa Ana.

“We in California need to make sure that we redouble our efforts to get the message out to all Californians, irrespective of whatever their immigration status is, that they have to be counted,” Umberg said, who co-chairs a Senate committee on the 2020 Census. “And it's not just for their own benefit. It's for all our benefit.”

California Attorney General Xavier Becerra said his office will be on the lookout for federal actions that would merit a court challenge, such as failing to seek census forms from immigrant households.

But Becerra says the president's memorandum, though inflammatory, isn't reason enough for a legal challenge yet.

“Simply because Donald Trump says things that are crazy or extreme doesn't mean we can go to court,” Becerra said, who was part of a coalition of attorneys general that sued to block the Trump administration from including the citizenship question in the 2020 Census.

“The moment they take action and that action would amount to a violation of the law, we now have standing ... to sue the Trump administration,” Becerra said.