President Donald Trump moved Tuesday to exclude immigrants living illegally in the United States from the census calculations for congressional seats, a move that would likely take political power away from both Democratic California and Republican Texas.
“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy,” the Trump memo said, adding that states “should not be rewarded” for “adopting policies that encourage illegal aliens.”
The memo is likely to face an immediate legal challenge. The Constitution calls for using “the whole number of persons in each state” to apportion seats in Congress. States get more leeway for internal legislature districts.
Democratic California Gov. Gavin Newsom called the move “rooted in racism and xenophobia” and “a blatant attack on our institutions and our neighbors.”
“Certainly there will be legal challenges and those will come very fast,” said Julia Gelatt, a policy analyst at the nonpartisan Migration Policy Institute.
Gelatt noted that the memo uses a different standard than the citizen voting-age population that the Trump administration will offer states next year to allow them to draw in-state districts without any children or immigrants, even those living here legally.
A Stateline analysis found that those districts would sometimes help affluent Democratic areas and hurt Republicans in areas with immigrant workforces.
Allowing some immigrants into the mix “might be an attempt to make it more palatable to the Supreme Court,” Gelatt said. At the same time, such a count is inherently unreliable since it’s impossible to find everyone’s immigration status.
“We can only guess where unauthorized immigrants live,” Gelatt said. “I’m not sure it’s even possible to generate these numbers, not with the accuracy that this requires.”
The Pew Research Center estimates that 10.5 million immigrants were living illegally in the United States as of 2017. (The Pew Charitable Trusts funds both the Center and Stateline.) More than a third of those were in California and Texas, and both states have seats in Congress in play depending on this year’s Census count.