On July 21, 2020, Trump signed an executive order declaring undocumented immigrants not be counted in the 2020 Census. The basis of Trump’s order stems from how a “person” is defined in the U.S. Constitution, which requires “persons in each State” to be counted in the census.
What is the impact of the Census?
The U.S. Census determines congressional representation as well as federal funding. The census provides the U.S. government with information on where people are living within the country and allows the government to allocate funding and representation accordingly. If more people are living in a certain area than in years prior, that area receives more funding and possibly more representation in Congress than before. Representation in Congress can then impact which laws get brought to the floor and passed or rejected.
What is a “person?”
Trump’s executive order focuses on who is a “person” that needs to be counted in the census in accordance with the U.S. Constitution. According to the Executive Order, this requirement never meant to include every individual physically present within a State’s boundaries at the time of the census, instead it refers to “inhabitants” of each State.
Trump’s Rationale
Trump acknowledges that as a member of the executive branch, he has discretion to determine who qualifies as an “inhabitant.” This authority also gives him the discretion to exclude undocumented persons from being counted in the census. According to Trump, excluding this group of people is more consistent with the principles of representative democracy, which would be undermined if undocumented people benefited States in gaining political influence through congressional representation.
Is citizenship important to the census?
In the U.S. Supreme Court case, Department of Commerce v. New York, the Court declared that asking a question on the Census about citizenship was not allowed. The Court determined that asking this question would inhibit the overall accuracy of the population as it could discourage people from filling out the census. While over the years some versions of the census have asked portions of the population about citizenship, the Census Bureau provided the opinion that the question of citizenship was less important compared to other questions on the census, and that statutory requirements could better provide Immigration and Naturalization Services with the requested information.
What happens now?
Although this story is still developing, our managing partner here at Berardi Immigration Law has some ideas as to what she thinks will come next and how she sees this impacting U.S. states.
If you have questions on how this executive order may impact you, please contact our office to schedule a consultation with one of our attorneys today!
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