Trump to Exclude Illegal Aliens from Congressional Apportionment Counts

WASHINGTON, DC - JULY 09: U.S. President Donald Trump delivers remarks about the White House Hispanic Prosperity Initiative in the Rose Garden July 9, 2020 in Washington, DC. Trump met with Hispanic leaders earlier in the day in the Cabinet Room. (Photo by Win McNamee/Getty Images)
Win McNamee/Getty Images

Illegal aliens will not be counted for purposes of congressional apportioning thanks to a memorandum set to be signed by President Trump on Tuesday.

Congressional seats and electoral college votes are currently divided up by counting all persons in each district, including illegal aliens. This allows states like California, New York, and Florida to receive more congressional seats and electoral college votes, while diluting political power in states with small illegal alien populations.

States like Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Utah, and West Virginia were projected to lose congressional seats if the illegal alien population was included in congressional apportioning.

The memorandum, White House officials said, will ensure American citizens receive proper representation in Congress without being minimized by apportionment counts inflated by the illegal alien population.

“Today’s action to exclude illegal aliens from the apportionment base reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy,” Trump said in a statement.

“My Administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government,” Trump continued. “Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all.”

The memorandum reads:

In order to apportion Representatives among the States, the Constitution requires the enumeration of the population of the United States every 10 years and grants the Congress the power and discretion to direct the manner in which this decennial census is conducted (U.S. Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of Commerce (the Secretary) with directing the conduct of the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). By the direction of the Congress, the Secretary then transmits to the President the report of his tabulation of total population for the apportionment of Representatives in the Congress (13 U.S.C. 141(b)). The President, by law, makes the final determination regarding the “whole number of persons in each State,” which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided that it is “the President’s personal transmittal of the report to Congress” that “settles the apportionment” of Representatives among the States, and the President’s discretion to settle the apportionment is more than “ceremonial or ministerial” and is essential “to the integrity of the process” (Franklin v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).

The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the “persons in each State, excluding Indians not taxed,” to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term “persons in each State” has been interpreted to mean that only the “inhabitants” of each State should be included. Determining which persons should be considered “inhabitants” for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are “persons” who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically “in” a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an “inhabitant” includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.

In Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census), I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country. As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the purpose of conducting the apportionment, and we intended to examine that issue.

Sec. 2. Policy. 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. 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 a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. 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. Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population. 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.

I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law.

Sec. 3. Excluding Illegal Aliens from the Apportionment Base. In preparing his report to the President under section 141(b) of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy set forth in section 2 of this memorandum. The Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (Feb. 8, 2018).

Trump said the “radical left is trying to erase the existence” of American citizenship by concealing “the number of illegal aliens in our country” as “part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.”

“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,’” Trump said.

Kris Kobach, running for the U.S. Senate in Kansas, told Breitbart News that Trump is “absolutely correct” to exclude illegal aliens from congressional apportioning.

“Our constitution does not contemplate representing people whose very presence is illegal,” Kobach said.

California, alone, is home to an estimated three million illegal aliens. If only American citizens were counted in congressional apportioning after the 2020 Census, California would potentially lose three to five of its 53 congressional seats.

Within minutes of the memorandum’s release, the George Soros-funded American Civil Liberties Union (ACLU) threatened to sue the Trump administration, claiming the U.S. Constitution requires illegal aliens to be counted in congressional apportioning.

A year from now, the U.S. Census Bureau is expected to release estimates on the American citizen, legal resident, and illegal alien populations at Trump’s direction. That data will be used for congressional apportionment and dividing up electoral college votes.

Today, there are an estimated 11 to 22 million illegal aliens living in the U.S. The Census estimates that at current legal and illegal immigration levels, by 2060 about one-in-six residents will have been born outside the country.

John Binder is a reporter for Breitbart News. Follow him on Twitter at @JxhnBinder. 

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