With a third of people in the United States still uncounted in this year’s federal census, tempers flared on Capitol Hill Wednesday over a new Trump administration directive that could change the way the population data will be used to determine how many seats each state gets in Congress for the next decade.
The president last week instructed the Census Bureau to calculate a new set of population data to use in the rebalancing of U.S. House seats among the states. The new numbers would include only U.S. citizens and foreigners living in the country legally, but not unauthorized immigrants. It would be the first time that the Census used two sets of books to measure the full population and the population for reapportioning the U.S. House.
There’s one big hitch in Trump’s plans, though: The Census Bureau isn’t asking people about their citizenship status in the 2020 count, because the U.S. Supreme Court ruled last year that the Trump administration could not do so.
U.S. House Democrats and several former directors of the U.S. Census Bureau, who served under both Republican and Democratic administrations, warned that the move from the Trump administration could discourage immigrants from participating in the survey altogether. That would further jeopardize the success of the Census, which is already running several months behind because of the coronavirus pandemic.
The Trump administration directive, said U.S. Rep. Jamie Raskin, a Maryland Democrat, is “not only unrooted in the Constitution and impractical, it’s a danger to having the real Census counted and completed.”
During a hearing that spanned nearly five hours, Republicans and Democrats on the House Committee on Oversight and Reform accused the opposing party of trying to introduce partisan meddling into the Census, which has a reputation of being a non-partisan exercise.
Steven Dillingham, the current Census director, tried to stay out of the fray. He said, for example, that he couldn’t weigh in on the constitutionality of Trump’s memo to produce separate population counts for reallocating House seats, because the final answer would ultimately be up to the courts.
But Rep. Jody Hice, a Georgia Republican, called the hearing a “waste of our time.” He said Democrats were focusing too much time on attacking the Trump administration’s moves to get citizenship information out of the Census but not enough on routine oversight of the enormous undertaking.
“We have a political party that is determined to give citizens of foreign countries … the right to be involved in impacting our federal elections,” Hice said. “This whole thing to me ought to be deeply troubling and, at worst, should be seen as election interference.”
“This is not a Democratic power-grab,” countered U.S. Rep. John Sarbanes, a Democrat who represents Maryland’s 3rd District. “This is a patriotic process we engage in every 10 years… What we’re hearing [from former Census directors] is that the politics need to be kept away from this space. The president is trying to politicize it. We need to keep it in a safe zone.”
One of the central questions about the Trump directive is whether it is allowed by the Constitution. The Fourteenth Amendment spells out the process for divvying up House seats. It says, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”
Del. Eleanor Holmes Norton, a Democrat from Washington, D.C., who once taught constitutional law, said the Trump memo “appears to me to be plainly unconstitutional.”
“The language of the Constitution is pretty clear,” she said. “I see ‘persons.’ I don’t see ‘citizens’ or any other word such as ‘voters.’ I don’t need to have taught constitutional law the way I did [to come to the conclusion that all residents must be counted]. You don’t need a law degree of any kind or a dictionary.”
But John Eastman, a law professor at Chapman University in southern California, argued that “persons” in the context of the Fourteenth Amendment meant people who could participate in electing a government. That’s why, he said, the Constitution originally excluded Native Americans who weren’t taxed: they were not citizens at the time. (Native Americans are now considered U.S. citizens and are counted in the Census.)
The Constitution is based on the consent of the people who will be governed by that document, he said. It “begins with ‘We the people of the United States,’ not ‘We the people of the world’ or ‘We the people of any and all foreign nations who happen to be present in the United States when a census is taken,’” he said.
So it’s not hard to see how the “people” being counted in the Census to determine states’ representation in Congress would refer to the same “people” in the preamble of the Constitution, Eastman argued.
Eastman said counting unlawful residents would give states an incentive to welcome people in the country illegally and undermine federal immigration authority.
Eastman also claimed that the move would be nonpartisan, because the heavily Democratic state of California and the heavily Republican states of Texas and Florida would likely be the states that lost the most congressional representation as a result of the change. (He did not mention, though, that it would likely be the most Democratic areas within Texas and Florida that lost representation as a result of the change.)
Raskin, who represents Maryland’s 8th District and is a former constitutional law professor, took issue with Eastman’s interpretation.
There were many times throughout the history of the United States when citizenship and the right to vote did not come hand-in-hand, he said. For much of the country’s history, a majority of citizens could not vote, because children cannot vote and women were largely denied that right until the early 20th Century. Black Americans were also considered citizens but were routinely denied the right to vote in the Jim Crow South, too.
On the other hand, white male immigrants were often allowed to vote in Midwestern and Western states before the Civil War, even if they had not become citizens yet, Raskin said. Even today, several local governments allow non-citizens to vote in municipal elections, he noted.
(Under Trump’s directive, the population of each state would not be determined solely by the number of citizens, either. The number of foreigners who legally live in the state would also count toward the reapportionment tallies.)
U.S. Rep. Fred Keller, a Pennsylvania Republican, said counting unauthorized immigrants in a state would skew the balance of power in Washington both in Congress and the White House. That’s because the number of U.S. House seats a state has is used to determine how many votes it has in the Electoral College that elects the president.
“If someone is here illegally,” he added, “they should not be represented here in the United States Congress.”
Kenneth Prewitt, who directed the Census Bureau during the 2000 Census, warned lawmakers that the bigger danger of Trump’s memo would be if it discouraged people – particularly hard-to-count people like undocumented residents – from participating in the Census at all. The Census is used not just to reallocate political power every 10 years, but to divvy up federal funding and inform economic decisions by private companies.
But the bureau had to stop in-person outreach efforts in March, just before the official Census count began on April 1. It plans to start going door-to-door to find people who haven’t responded yet in mid-August. Originally, Trump administration officials talked about giving the agency an extra four months to complete the count. Now, though, it looks as if the administration may push the bureau to wrap up early, so the Trump administration would oversee the reallocation of House seats.
“Right now, the Census (Bureau) is at risk of being inadequate to do the task it is charged to do, at serious risk,” Prewitt said. “The debate over … the undocumented is beside the point if we’re not even going to have a Census that we can take to the American people.”
Daniel C. Vock is a national correspondent for States Newsroom. He can be reached at [email protected].