Donald Trump’s new memorandum to exclude undocumented immigrants from the next round of congressional apportionment is morally repulsive, illegal, and impossible. It is repulsive because it borrows the logic of the notorious Three-Fifths Clause to declare that undocumented immigrants are not full “persons” under the Constitution. It is illegal because it seeks to exclude these immigrants from a state’s population when counting how many seats each state gets in the House of Representatives, which violates the Constitution. And it is impossible because there is no way that the government can count undocumented immigrants with any accuracy by the December deadline.
None of these problems will stop Trump from trying to rig the census to strip House seats from states with large undocumented populations. Even if this scheme fails, however, the memo will do insidious damage to the bedrock principle that all people count. Trump has formally endorsed the notion of excluding noncitizens from the redistricting process, an idea that red states are already exploring to boost the electoral power of white, rural voters at the cost of diverse urban centers.
Trump’s census order, released on Tuesday, is not actually an order at all but a “memorandum” that announces “the policy of the United States” (i.e., the Trump administration). It attempts to revert back to the pre–Civil War practice of diminishing the constitutional personhood of certain residents. Originally, the Constitution counted enslaved people as three-fifths of a person when apportioning House seats. The 14th Amendment repealed this Three-Fifths Clause by stating that representatives “shall be apportioned among the several states according to their respective numbers, counting the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.” House seats would now be apportioned on the basis of “persons” living in each state. There would be no more degrading distinctions on the basis of legal status. Ever since, Congress has counted all “persons,” meaning a state’s “inhabitants,” another term used in the 14th Amendment.
Trump wants to disrupt this historical practice by decreeing that undocumented immigrants are not “persons” under the 14th Amendment. In other words, he wants to import the racist logic of the Three-Fifths Clause into an amendment designed to abolish that very principle. On what legal basis? Trump provides two arguments.
First, he equates undocumented immigrants with diplomats, tourists, and businessmen. Because these individuals are only visiting the U.S., they are not deemed “inhabitants” and thus excluded from the census. But a large majority of undocumented immigrants cannot be considered foreign tourists on a temporary jaunt through America. They live here, put down roots, and often raise children who are citizens. They are members of their communities with an established presence in the country. To dismiss them as non-inhabitants—and, by extension, not “whole … persons”—would run counter to the 14th Amendment.
Second, Trump presents a policy argument thinly disguised as a legal claim. “Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status,” his memo states, would “create perverse incentives encouraging violations of Federal law.” States that adopt so-called sanctuary laws to protect undocumented immigrants “should not be rewarded with greater representation in the House of Representatives.” And excluding these immigrants from the census count “is more consonant with the principles of representative democracy,” because states with more citizens deserve more “formal political influence.”
This logic transforms a constitutional command into a tool of partisan manipulation. In Trump’s view, the executive gets to decide who is and is not a “person” based on “principles of representative democracy.” If certain people deserve less “political influence,” they can be excluded from the count with a wave of the president’s magic wand. Moreover, the executive can punish states that pass laws he dislikes by refusing to count some of their residents, diminishing their congressional representation. This view is not the law, or anything close to it. No court has ever allowed the government to exclude an entire class of inhabitants from the census count based on a president’s idiosyncratic conception of who is a “person.”
Yet an even bigger logistical problem looms over this endeavor: The government does not know how many undocumented immigrants live in each state and has no way to find out. Trump notoriously tried to count noncitizens on the 2020 census, but the Supreme Court blocked the question. He then tried to tally noncitizens by drawing on existing records, but the process has floundered: Only four states have turned over citizenship data to the federal government. And states do not track the number of undocumented immigrants within their borders, so even if Trump could tally all noncitizens, he could not identify which are authorized to live here. By law, Trump must turn over census apportionment data to Congress within a week of Jan. 3, 2021. How does he intend to come up with nonexistent citizenship data in less than six months? The memo does not explain.
And here’s where things get messy. The Constitution grants Congress power over the census and congressional apportionment. Congress has delegated most of those responsibilities to the executive branch. Under current law, the president reports census apportionment data to Congress, then the clerk or sergeant at arms of the House of Representatives certifies the information and sends it to state governors. Presuming Democrats retain control of the House, Speaker Nancy Pelosi could direct the clerk or sergeant at arms not to certify Trump’s data. And if Joe Biden beats Trump, he could withdraw Trump’s report, replacing it with an accurate, constitutional count.
Before this potential showdown, though, the Trump administration will be sued. States with large undocumented populations like California—which the president is trying to punish by reducing their congressional representation—will probably join the legal pile-on. It seems unlikely that the same Supreme Court that blocked the census citizenship question will now let the Trump administration fabricate data to promote unconstitutional apportionment. Indeed, this entire operation reeks of the kind of “arbitrary” and “capricious” executive action that federal law forbids.
Despite these strong odds that Trump’s plan will fail, it does tee up an inevitable, monumental legal battle just around the corner. For decades, states have drawn districts on the basis of overall population. But now, as they prepare for another round of redistricting in 2021, red states like Texas are considering how they can shift power away from cities and communities of color. Once House seats are apportioned, states get to draw the lines for their congressional districts. They also draw districts for their own legislatures. And some state lawmakers are eager to draw these districts by counting citizens, not people. This method would transfer power from diverse urban regions toward white, rural areas—bolstering Republican power in Congress and state legislatures. The Supreme Court has declined to say whether redistricting on the basis of citizen population is unconstitutional, though it very obviously is.
Trump, then, is essentially firing the first shot of this impending battle. He has thrown the weight of the executive branch behind the basic proposition that only citizens deserve political representation. And he has sent a message to his political allies in the states to pursue their own efforts to strip immigrants, and the communities that welcome them, of political power. Even if Trump loses this fight over apportionment, the war over who counts in America is really just beginning.
For more of Slate’s legal coverage, listen to a special edition of the Amicus podcast.