photo by Tony Webster
For a few minutes last week, President Donald Trump caused a stir when he announced plans to exclude unauthorized residents from the population counts that will reapportion congressional seats after this year’s census.
There were the usual statements of outrage and promises of litigation, par for the course whenever Trump threatens to use his pen for anything besides ordering breakfast. But the political conversation quickly moved on to other matters. Maybe this is just because it is 2020, when the ongoing pandemic and upcoming elections have turned the news into a daily kaleidoscope in which those intertwined stories are constantly reflected. Or maybe it is because the president lacks any significant influence over congressional apportionment anyway.
In Trump’s memorandum on the subject, the president effectively asked the Commerce Department – which oversees the census – to count everyone in the country, which it was already doing. The memo goes on to state, “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 […] to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” But that extent is small, if it exists in the first place.
The 14th Amendment stipulates 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.” The amendment, enacted during Reconstruction following the Civil War, goes on to stipulate that a state will lose representation in a proportion reflecting the number of male citizens (women generally could not vote when the amendment was passed) over age 21 denied the right to vote in federal elections. Exceptions were made only for those who lost that right due to participation in the rebellion or for other crimes. This was written into the Constitution to discourage formerly rebellious states from denying voting rights to freed slaves. (It didn’t work.)
There is no question, either morally or in statutes and case law, that anyone living in this country is a “person,” regardless of their legal status. Although Trump wanted to include a question about immigration status in the 2020 census, which the courts blocked, there has been no hint that the administration wants to leave immigrants in the country without legal permission out of the population count. This is a notoriously difficult group to count anyway, and the pandemic disruptions this year are not helping. But anyone who answers the census will be counted.
The next question is whether states are entitled to maintain or gain representation in the House of Representatives to reflect the portion of their population that lacks either citizenship or legal residence. It is a question that has been debated for many decades, long predating Trump. The courts have not resolved it thus far. The consensus from both advocates and opponents of this approach, however, is that it would require a constitutional amendment. The 14th Amendment’s reference to “persons” does not seem to discriminate.
I suppose, if someone tried to change the apportionment rule, it would come down to a question of whether an illegal resident of a state can be considered a “resident,” since that individual could be subject to removal at any time. Trump’s memorandum hints strongly at that argument, and also argues that denying representation to illegal residents is the “policy of the United States.” That’s a stretch; it may be Trump’s policy, but it isn’t the country’s until someone actually codifies or implements it.
But before courts can rule on whether it is constitutional to disregard undocumented residents for congressional apportionment purposes, someone will have to try to do it. Trump says he is ready and willing. But is he able?
The president actually has no role in apportioning House seats among the various states. In fact, the only role the executive branch plays in the process is in conducting the census. Under the Reapportionment Act of 1929, it is the House of Representatives itself – acting through its House clerk, under a formula hard-wired into the statute – that notifies the states following each decennial census whether they will gain or lose seats. It is then up to the individual states to determine their congressional district boundaries.
Any attempt by a president to intervene in the process would not only implicate the 14th Amendment, but would raise separation-of-powers issues. A duly enacted statute leaves it to the House to apply the formula that determines its own membership, just as the House has the power to expel one of its own members. The president, by design, has nothing to say in the matter.
That doesn’t mean Trump can’t say something anyway, as is his wont. Maybe he really thinks he has some influence in the process. The memo argues that “the President’s discretion to settle the apportionment is more than ‘ceremonial or ministerial.’” But since reapportionment won’t happen until 2021, he would have to win another election to test that theory.
Or maybe Trump was just laying down a marker or talking to his base. In the end, it really doesn’t matter, which is why it is just as well that the national conversation seems to have moved on to things that do.