Contrary to what you might have read, President Trump’s “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” which he issued [on Tuesday, July 21], doesn’t change the way the Department of Commerce will conduct the 2020 census.  It is, instead, an announcement of the way that Trump himself plans to report the results of that census to Congress next January, for purposes of establishing how the 435 members of the House of Representatives will be allocated, or “apportioned,” among the 50 States.  In short, Trump has announced that he won’t include “aliens who are not in a lawful immigration status under the Immigration and Nationality Act” in his calculation of how many House seats are to be apportioned to each State.  (I’ll refer here to these individuals as “undocumented immigrants,” although that shorthand might be imprecise:  it’s possible that some “undocumented” aliens have a “lawful immigration status,” depending on how Trump implements his self-described category of individuals.)

As I explain in the back end of this post, if the President follows through on this plan next January, he’ll violate a federal statute and cause the federal Government to violate two provisions of the Constitution.  Indeed, the legal question isn’t really a close one:  What Trump is threatening to do is inconsistent not only with the way the Supreme Court has interpreted the Constitution and the relevant statutes, but also with the way the Department of Justice has long construed those legal directives.  Therefore if DOJ—the Office of Legal Counsel, in particular—signed off on this memorandum, that approval was inexplicable.  And if, on the other hand, DOJ properly advised Trump that this would be illegal but he decided to do it, anyway, then that’d be inexcusable.

Before I address the merits, however, a few words are in order on just what Trump decreed in his Memorandum; the likelihood that he can and will follow through on his threat; and the possible means of remedy if he does so.

Congress has directed the Secretary of Commerce—currently Wilbur Ross—to “take a decennial census of population as of the first day of April” every ten years, including, of course, this year (2020).  13 U.S.C. § 141(a).  The statute also requires the Secretary to report “the tabulation of total population by States” to the President by January 1, 2021.  Id. § 141(b).  Nothing in Trump’s July 21 Memorandum instructs the Secretary to change the method of taking the census or of tabulating and conveying to Trump the “total population by States.”  Presumably, then, those statewide census totals will include undocumented immigrants living in each State, as they've always done.

What the Memorandum changes, instead, will be—or might be, anyway—what Trump himself does with those Commerce Department population numbers. 

The statute requires that after the President receives the Secretary’s figures, he must transmit to Congress two sets of numbers between January 3 and January 10 of next year:  (i) “a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the … decennial census of the population”; and (ii) “the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.”  2 U.S.C. § 2a(a).  The statute further provides that “[e]ach State shall be entitled” to the number of House representatives “shown in” the President’s January statement, “until the taking effect of a reapportionment under this section or subsequent statute.”  Id. § 2a(b).  And it instructs the Clerk of the House to “send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section” within 15 days after the President transmits those numbers.  Id.

In the ordinary course, then, Trump would do what every President before him has done:  transmit to Congress the Commerce Department’s census calculations of the numbers of total State residents as of the previous April 1, and calculate House seat apportionments based upon those state population numbers.  In his July 21 Memorandum, however, Trump announced that although he (presumably) will transmit to Congress the total population in each State as ascertained in the census, he will also exclude “from the [House] apportionment base” the parts of those population totals consisting of “aliens who are not in a lawful immigration status under the Immigration and Nationality Act, . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”  I’ll explain below why that course of action would be unlawful if Trump does it next January.

If Trump successfully excludes undocumented immigrants from the apportionment base, how would that affect the allocation of House members among the States?

Each member of the House will represent approximately 700,000-800,000 people beginning with the 2022 election.  At a minimum, therefore, States with more than a half-million or so undocumented immigrants would be at risk of losing one or more seats if Trump follows through on his plan.  Florida and New York might lose one seat, as might Georgia, Illinois, New Jersey, and/or Nevada, among others.  Texas might lose two House seats; and California might lose as many as three.  It’s far too speculative to assess at this date which States would gain seats as a result of those reallocations.

Come next January, will Trump have access to any evidence that would enable him to calculate the number of immigrants “not in a lawful immigration status” in each State, so that he might exclude them from his transmitted apportionment tally?

Probably not.  The census itself won’t calculate those numbers because (as most readers know) the Census Bureau won’t even ask respondents whether they are citizens, let alone whether they’re undocumented immigrants.  That’s why Trump’s Memorandum directs Secretary Ross to do something more—to “take all appropriate action, consistent with the Constitution and other applicable law, to provide information” to Trump that would “permit[] the President, to the extent practicable, to exercise” his “policy” of not counting immigrants “not in a lawful immigration status” for purposes of his calculation of the apportionment of House seats among the States.

If Trump does (unlawfully) exclude undocumented immigrants from his apportionment calculation, how might that be remedied?

Let’s assume, however, that Trump figures out some way to count undocumented immigrants and thereafter excludes their numbers in his apportionment calculations.  And let's further hypothesize, for example, that it results in Trump's conclusion that Nevada thereby loses a House seat to West Virginia.

As noted above and below, that would be unlawful.  But what would the remedy be?

I think there are three possible ways such a decision could be overturned. 

First, and most obviously, after Trump transmits his numbers, Congress could enact a law prescribing that the House apportionment shall be based on total population of actual State residents, including immigrants “not in a lawful immigration status.”  Section 2a(b) of the current law contemplates the possibility of just such a statutory corrective:  it provides that each State shall be entitled to the number of House representatives “shown in” the President’s January statement “until the taking effect of . . . a subsequent statute.”  See also S. Rep. 71-2 at 3 (1929) ("The theory of this legislation . . . is that in every decennium the Congress shall have a free opportunity--as is its right and responsibility--to translate the current census into a new apportionment on whatever basis it pleases."); id. at 5 ("Constant power is left with Congress to control these details if it sees fit to act.").

Second, if Joe Biden wins the November election, then on January 20, 2021, or thereafter, he probably could supersede or replace Trump’s unlawful apportionment figures with lawful figures—presumably by transmitting those new figures to Congress (followed by the House Clerk’s transmission of new numbers to the governors of the affected States).  To be sure, the text of the current law doesn’t say anything about the prospect of a unilateral presidential correction once the President has made the required transmission in early January.  That’s why, in Utah v. Evans (2002), North Carolina argued that Utah lacked standing to sue to challenge the denial of a House seat that the President had allocated to North Carolina.  According to North Carolina, a Utah victory in court would have been futile because the horse was already out of the barn:  “There is no provision authorizing the President to revise or rescind the apportionment determination for any reason before the next cycle, and none can be implied.”  (NC Br. at 25.)  The Supreme Court, however, rejected that argument.  It held that Utah had standing to sue because if the Court declared the apportionment to be unlawful, it was “‘substantially likely that the President and other executive and congressional officials would abide by’” the judiciary’s “‘authoritative interpretation of the census statute and constitutional provision’” and would properly allocate the seat to Utah, even if the President wasn’t bound by the judgment.  536 U.S. at 463-64 (quoting Franklin v. Massachusetts, 505 U.S. at 803 (plurality opinion)).  (In Franklin, eight Justices of the Court expressly or implicitly concluded the same, as Justice Scalia conceded in his dissenting opinion, see 505 U.S. at 824 n.1.)  This holding of the Court, first in Franklin and again in Utah v. Evans, appears to have been predicated on an assumption that the statute allows the President to “correct” an unlawful or mistaken allocation of House seats if and when he concludes (or is told by a declaratory judgment) that it was unlawful or mistaken.  (That’s not a crazy assumption.  Imagine, for instance, that a President discovers in February that his transmission in early January was beset by clerical or computational errors.  It’s not unreasonable to think that the law allows him to correct those errors.  So, too, if the errors were based upon a mistaken view of what the law requires him to do.)

[UPDATE:  Within days of Trump's signing of the Memorandum, at least five suits have already been filed challenging its legality and seeking to enjoin the President from following through on his plan next January.  Two of those cases have been filed in the U.S. District Court for the Southern District of New York and assigned to Judge Jesse Furman--one by the State of New York and dozens of other states and cities (No. 20-5770), and the other by the ACLU on behalf of the New York Immigration Coalition and other organizations (No. 20-5781).  A third was filed in the U.S. District Court for the District of Columbia by Common Cause, the Cities of Atlanta and Paterson, and other plaintiffs (No. 20-2023); it's been assigned to Judge Casey Cooper  A fourth was filed in the U.S. District Court for Massachusetts by Haitian-Americans United and other organizations (No. 20-11421), which has been assigned to Judge Douglas Woodcock.  And a fifth was filed in the U.S. District Court for the Northern District of California by the City of San Jose, et al. (No. 20-5167); it's been assigned to Judge Nathanael M. Cousins.  In the S.D.N.Y. cases, Judge Furman has issued an order directing the parties to address certain questions by August 10.  DOJ will almost certainly argue that the suits aren't ripe and/or that there's no cause of action against the President; but if the courts reject those justiciability objections, the merits of at least some of the claims in the suits are strong, as I discuss below.] 

[Further UPDATE:  The House Oversight & Reform Committee will have a hearing on Wednesday morning, July 29, about the Memorandum, at which Census Bureau Director Steven Dillingham is scheduled to testify.]

The Merits

For many years, there have been calls from some quarters for Congress to enact legislation that would exclude certain categories of so-called “illegal” immigrants—roughly corresponding to Trump’s category of “aliens who are not in a lawful immigration status”—from population totals for purposes of State-by-State apportionment of House seats.  And quite frequently members of Congress have introduced such legislation, thereby triggering debate about whether the Constitution would allow the government to not count such immigrants for reapportionment purposes.  'til Tuesday, the Executive branch’s view in such debates, articulated by both the Department of Justice and the Census Bureau, had always been that such an amendment would be unconstitutional, for reasons I discuss below.

Regardless of the constitutional question, however, what virtually everyone has always agreed upon, and assumed, is that removing such persons from the apportionment count would, at a minimum, require a statutory amendment, because the current law—indeed, the law as it’s existed from 1790 until today—requires the government to count such persons if they are residents, or inhabitants, of a State. 

Indeed, the Census Bureau’s rules for the 2020 census state that its procedures “are guided by the constitutional and statutory mandates to count all residents of the several states” (citing, inter alia, 13 U.S.C. § 141(a)).  The Bureau defines a resident “in accordance with the concept of ‘usual residence,’ which is defined by the Census Bureau as the place where a person lives and sleeps most of the time. . . .  This concept of ‘usual residence’ is grounded in the law providing for the first census, the Act of March 1, 1790, expressly specifying that persons be enumerated at their ‘usual place of abode.’” 

So, for example—and of most pertinence for present purposes—the Bureau prescribes that citizens of foreign countries living in the United States are to be “[c]ounted at the U.S. residence where they live and sleep most of the time.”

As noted above, Trump has not instructed the Census Bureau to do anything different in this year’s census.  And he will even report those census numbers to Congress.  Trump, however, plans to exclude certain foreign nationals living in the U.S. from his official, transmitted calculations of State-by-State reapportionment totals.

The relevant federal statute, 2 U.S.C. § 2a(a), does not expressly say that the President must calculate House apportionment based upon his statement “showing the whole number of persons in each State, . . . as ascertained under the … decennial census of the population.”  But that correspondence is clearly implied (particularly in the instruction that the President is to use “the method of equal proportions”); it's what the President has always done; and it’s unthinkable that Congress intended otherwise, especially in light of the (twice-stated) constitutional requirement that “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.”  Amend. XIV, § 2; see also Art. I, § 2, cl. 3.

Trump’s Memorandum does not argue otherwise.  Trump does not claim, for example, that his apportionment calculations can be based upon anything other than “counting the whole number of persons in each State, excluding Indians not taxed.”  Nor does Trump argue that undocumented immigrant are not “persons.”

And, most importantly, Trump doesn’t take issue with the fact that the statute, in light of the constitutional requirement, requires him to make apportionment calculations based upon the count of the States’ inhabitants.  See Trump Memorandum ¶ 1 (“the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included”).  Nor could he, because that proposition has long been established, and is largely uncontroverted.  See Wesberry v. Sanders, 376 U.S. 1, 13 (1964) (“The debates at the Convention make at least one fact abundantly clear: that when the delegates agreed that the House should represent ‘people’ they intended that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State’s inhabitants) (emphasis added); Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (it was established at the Founding that the basis of representation in the House “was to include all inhabitants”) (emphasis added); see also The Federalist No. 54 (repeatedly stating that apportionment is to be “founded on the aggregate number of inhabitants” of each State) (Madison); Fed’n for American Immigration Reform v. Klutznick, 486 F. Supp. 564, 576 (D.D.C. 1980) (three-judge court), appeal dismissed, 447 U.S. 916 (1980).

So what’s Trump’s argument, then?  Remarkably, his Memorandum insists that the President can determine—and prescribe House reapportionment based upon his conclusion—that undocumented immigrants residing in a State are not inhabitants of that State. 

Trump’s argument in this respect is based upon the fact that no one has ever understood the constitutional phrase “the whole number of persons in each State” to be read literally to include any and all human beings who happen to be present “in” a State on April 1 of a census year.  As the Memorandum notes, for example, “aliens who are only temporarily in the United States, such as for business or tourism, … have been excluded from the apportionment base in past censuses.”  

That’s correct—but that’s because no one would include ordinary, transient visitors, such as tourists or persons in the U.S. for business purposes on April 1, as inhabitants of the States they happen to be in on April 1.  (The Memorandum also refers to “certain foreign diplomatic personnel.”  Most such personnel living in the U.S. are counted as State inhabitants, however.  The only diplomats who the Census Bureau has sometimes excluded from the census count are those living in foreign nations’ embassies, which aren’t deemed to be in the United States for certain legal purposes.)

It simply doesn’t follow from this unremarkable fact, however, that “[t]he discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’” is unbounded, as the Trump Memorandum suggests, so that it “includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.”  

As the Court noted in Franklin, 505 U.S. at 804, since 1790 Congress has deemed a person to be an inhabitant of a State—and thus is “in” the State for purposes of House apportionment—if his or her “usual residence” is in that State.  (The 1790 Act referred to a person’s “usual place of abode.”)  In particular, and as noted above, the Census Bureau has always counted a person as an inhabitant of a State if that is “where a person lives and sleeps most of the time.”  (Sometimes the Bureau has gone beyond this, and counted some persons as inhabitants of a State even if they didn’t live and sleep there most of the time—such as certain U.S. persons temporarily stationed abroad—but a person’s “usual abode” within a State has always been understood as a constitutional and statutory floor for counting a State's inhabitants.)

Under this test, the individuals Trump would exclude from his apportionment count are inhabitants of a State, and the Executive branch has always treated them as such, because their “usual residence”—the place they live and sleep most of the time—is in a State.  To say otherwise would be to disregard congressional and Executive branch understandings of what the statute prescribes extending back over 200 years.  (Moreover, to now suddenly construe the statute to allow for the disregard of such persons in the apportionment count would, at a minimum, raise a very serious constitutional question—one that ought to be avoided by adhering to the statute's uniform, traditional reading.)

To be sure, the federal government has the authority to remove such persons from the country at any time, and therefore there's some chance that a small minority of such persons will not continue to be inhabitants of the States in which they now live for the entirety of the decade covered by the forthcoming reapportionment.  That doesn't mean, however, that they weren't inhabitants of those States on April 1, 2020.  Nor does it distinguish them from many other categories of persons who are counted as State inhabitants based upon their April 1 place of abode but who are more likely not to live in the State for the duration of the decade.  Think, for example, of many "out of state" college students; of foreign nationals who are temporarily present in a State on a work or student visa; of prisoners serving time in prisons and jails outside their previous State of residence whose sentences will soon expire; of persons who've purchased property in another State and intend to move there soon; or, indeed, of persons who already moved to another State, or overseas, between April and December of 2020--or who died during that period.  If the President treats all of these categories of people as inhabitants of the States in which they lived as of April 1, 2020, as of course he will do, then there's no apparent justification for him not to treat likewise any "aliens who are not in a lawful immigration status”--persons who are more likely to remain residents of the States in which they lived in April.  

In his Memorandum, Trump does offer one purported justification for the disfavored treatment:  "Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.”  Even if that were true, however--and obviously, it’s deeply contested--it's irrelevant:  Congress hasn't given the Commerce Secretary, or the President, the authority to refuse to count inhabitants—persons whose “usual residence” is within a State—because of some vague assertion about “the principles of representative democracy.”  “Usual residence” is the test (or the floor, anyway).  And the individuals Trump plans to exclude from his count satisfy that test.

Therefore if Trump goes through with what he’s threatened to do come January, he’ll violate his statutory duty.  [UPDATE:  In addition, as discussed above, the statute is best read to require Trump to make his "ministerial," arithmetic calculation of reapportionment figures based solely upon the census figures provided by the Secretary.  Therefore his planned use of other data--compiled outside the census--to alter the results that he would have reached relying upon the census data alone will also violate the law.]

Would it also be a violation of the Constitution?  Probably.  As noted above, it’s uncontroverted that the Constitution requires the Government to allocate each State’s allotment of House seats based upon the total number of inhabitants of the States.  Could Congress enact a statutory amendment that would declare undocumented immigrants to not be inhabitants of States, even if they regularly reside there without any plans to leave—presumably based upon the fact that there’s a chance, however remote, that the Government might one day remove such persons from the United States?

I’m dubious.  The fact that someone might some day not live in a State—and that the person has no legal right to remain there—doesn’t change the fact that he or she did in fact live there on April 1, 2020..  And so if habitation is the constitutional floor--something no one, including Trump, has ever contested--it sure would appear that such a statute would be unconstitutional.  

[UPDATE:  In a 1988 letter to Congress regarding a bill that would have excluded "illegal" aliens from the reapportionment count, the Department of Justice noted that the Congress that passed the Fourteenth Amendment in 1866 "not only recognized that aliens would be counted in the census but insisted upon their inclusion as part of a compromise designed to ensure that the amendment would be passed by the industrial states," and "rejected arguments that representation should be based on people with permanent ties to the country."  DOJ further explained that, like the individuals that Trump plans to exclude from his count, at least some of the aliens that the Fourteenth Amendment protected for purposes of House representation in 1866 were subject to removal from the country by the Executive branch.  Indeed, "[i]t was ... possible to be an illegal alien in 1866."] 

More importantly than my view, however, that's always been the position of the Department of Justice, and of the Executive branch more broadly.  In the 1980 FAIR litigation, for instance, DOJ argued that excluding undocumented immigrants from the apportionment count would be a “radical revision of the constitutionally mandated system for allocation of Representatives to the States of the Union” that would require a constitutional amendment.  DOJ argued likewise in a 1989 case.  See Ridge v. Verity, 715 F. Supp. 1308 (W.D. Pa. 1989).  And DOJ and Bureau of Census officials have often testified or written to the same effect when members of Congress have proposed such legislation.

[UPDATE:  In its 1988 letter, for instance--which was almost certainly drafted by OLC--DOJ told Congress that the drafters of the Fourteenth Amendment specifically intended to include resident aliens in the count, and ratified DOJ's previous opinion that "to the extent [legislation] would exclude illegal aliens from the census, it is unconstitutional."  The next year, DOJ once more wrote to Congress that it had reviewed the issue again and had "found no basis for reversing this position."  That legal review was almost certainly conducted by OLC, led at the time by Bill Barr.

What's more, as DOJ explained in 1988, the 71st and 72nd Congresses debated passage of constitutional amendments that would have excluded aliens in the count for apportionment of representatives--reflecting a legislative view that the Fourteenth Amendment forbids exclusion of such aliens from the count.  See H.R. Rep. 2761, 71st Cong., 3d Seas. (1931); H.R. Rep. 823, 72d Cong., 1st Seas. (1932).  Moreover, "[t]he Senate legal counsel had earlier issued an opinion concluding that aliens could not be excluded.  71 Cong. Rec. 1821 (1929)."]

President Trump’s new Memorandum ignores all of this Executive branch [and legislative] precedent, and doesn’t offer anything—apart from a vague reference to “the principles of representative democracy underpinning our system of Government”—that might justify such a radical and sudden repudiation of the Executive branch’s well-established view of the constitutional question.  (If OLC approved this Memorandum, did it simply disregard the longstanding DOJ view?  Offer compelling reasons to overturn it?  Or did Trump cut out OLC from the process?)

In any event, it's not necessary to resolve the constitutional question regarding a hypothetical statutory amendment now, because the current statute--especially when read in light of the constitutional avoidance canon, but also in accord with the way all the branches have understood it for over 200 years--now prohibits what President Trump has announced he'll do next January.