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States Sue Trump Over Census Memo

July 27, 2020 (7 min read)

New York Attorney General Letitia James, July 24, 2020

"New York Attorney General Letitia James today led a large coalition of states, cities, and counties in filing a lawsuit against President Donald Trump for attempting to, once again, illegally leave millions out of the apportionment base that establishes the number of members in the House of Representatives that each state receives. The lawsuit seeks to stop the Trump Administration from politicizing the census and violating basic constitutional commands, and instead aims to ensure the administration counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution unambiguously requires.

“President Trump’s proclamation is the latest in a long list of anti-immigrant actions and statements he has made since the beginning of his first campaign. It's another election-year tactic to fire up his base by dehumanizing immigrants and using them as scapegoats for his failures as a leader,” said Attorney General James. “No one ceases to be a person because they lack documentation, which is why we filed this lawsuit. Instead of fear mongering, now is the time to be engaging in a robust education and outreach campaign to ensure each person in this country is counted. We beat the president before in court, and we will beat him again.”

“No New Yorker should be fooled by the president’s latest partisan, political stunt, which is clearly illegal and unconstitutional. Under the leadership of Attorney General Tish James, the state and its partners prevailed at the Supreme Court against the president’s last attempt to manipulate the census, and we will prevail in court again,” said Julie Menin, director of NYC Census 2020 and executive assistant corporation counsel of the New York City Law Department. “To be clear, the census is safe, confidential, and there are no questions about immigration or citizenship. The single best way for all of us to respond to this latest threat is simply to respond to the census.”

“We stand with Attorney General James and our partners against yet another anti-democratic attempt by the president to stoke fear and misinformation about the census and further his anti-immigrant and racist agenda,” said Bitta Mostofi, commissioner of the NYC Mayor’s Office of Immigrant Affairs. “There is no citizenship question or any questions on immigration status on the census. Every New Yorker has the right to be counted to ensure our communities’ fair share of federal funding and representation. We know the resilience of our immigrant communities and the bravery so many have had in the face of countless attacks by the Trump Administration. As always, we will fight to ensure our communities’ power and contributions are recognized and that all New Yorkers are counted.”

“Yesterday, the Trump Administration was forced to ‘fess up to misleading the public and the court. Today, we’re going to court to make it end their brazen effort to mislead the public about the census,” said NYC Corporation Counsel James E. Johnson. “The Constitution requires every person in the U.S. to be counted in the census regardless of citizenship status. That count determines our cities’ representation in Congress and the amount of federal aid we receive. By trying to exclude our immigrant residents from the count, the Trump Administration is blatantly defying the Supreme Court and the Constitution. We will reject this attempt to sow chaos. We will ensure our communities have their voice in Congress and the federal assistance they need to recover from this pandemic.” 

The Constitution is abundantly clear: For purposes of apportioning members of the House of Representatives among the states, every person residing in the U.S. during the census, regardless of legal status, must be counted. But, this past Tuesday, July 21, 2020, President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base — the first time such action has been taken in our nation’s history.  

This week’s effort by President Trump and his administration to exclude undocumented immigrants from the apportionment base is just the latest in the Trump Administration’s illegal maneuvers to manipulate the census count and congressional apportionment. In 2018, Secretary Ross directed the Census Bureau to use the 2020 Decennial Census to demand information on the citizenship status of every resident in the country. After a legal battle that made its way through multiple federal courts last year, the U.S. Supreme Court ruled in favor of New York and prohibited the Trump Administration from adding a citizenship question to the census. But the president’s proclamation this week lays bare the real reason driving the addition of a citizenship question to the census: To exclude undocumented persons from the “whole number of persons” that constitutes the apportionment base and to discriminate against Hispanics and noncitizens.

The Fourteenth Amendment clearly states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State...” The framers of the Fourteenth Amendment deliberately chose the phrase “whole number of persons” to refer to all persons living in each state — including the entire immigrant population. More than 150 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status.

Finally, until the president’s announcement this week, even other members of his administration have acknowledged that apportionment must be based on all persons. The person tasked with overseeing the census — Secretary Ross — testified under oath during a congressional committee hearing last year that “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted” — making no mention of an individual’s legal status.

In the lawsuit — filed against President Trump, the U.S. Department of Commerce, the U.S. Census Bureau, Commerce Secretary Wilbur Ross, and Census Director Steven Dillingham, and joined by 21 attorneys general, nine cities, four counties, and one combined city and county — Attorney General James and the coalition argue that apportionment based on a population count that unlawfully excludes undocumented immigrants will:

  • Lead to the loss of congressional seats and presidential electors in the Electoral College,
  • Skew the division of electoral districts within jurisdictions by impairing state and local redistricting efforts that rely on the census count,
  • Reduce federal funds to state and local jurisdictions by deterring immigrants from responding to the decennial census that is currently underway, and
  • Degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions.

The coalition also makes clear, in today’s lawsuit, that public statements and actions by President Trump and his administration have established that the rationale for excluding undocumented immigrants from the apportionment base has always been motivated by racial animus against immigrants of color, and a desire to curb the political power of immigrant communities of color. The president’s memorandum explicitly states that the Trump Administration’s goal is to reduce political influence and congressional representation to jurisdictions with a larger share of undocumented immigrants. Further, the president’s announcement is clearly intended to promote fear and deter participation in the census by immigrants and their families, as it comes just weeks before enumerators are scheduled to go into the field to encourage households to respond to the census.

Attorney General James and the coalition specifically argue that the exclusion of undocumented immigrants from the apportionment base violates the Fourteenth Amendment; the Due Process Clause of the Fifth Amendment; the Tenth Amendment; and the Administrative Procedure Act, by being both contrary to law and arbitrary and capricious. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent. Attorney General James and the coalition ask the court to force the president and his administration to hold to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants — or any other person — from the apportionment base.

Joining Attorney General James in filing today’s lawsuit are the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. The attorneys general are joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; and the city and county of San Francisco. Additionally, Cameron, El Paso, and Hidalgo Counties in Texas and Monterey County in California joined the lawsuit.

This lawsuit was handled by Chief Counsel for Federal Initiatives Matthew Colangelo and Assistant Attorney General Fiona Kaye, both of the Executive Division, and Civil Rights Deputy Bureau Chief Elena Goldstein, of the Division for Social Justice — all under the supervision of First Deputy Attorney General Jennifer Levy; as well as Senior Assistant Solicitor General Judith N. Vale and Deputy Solicitor General Steven C. Wu of the Division for Appeals and Opinions — both under the supervision of Solicitor General Barbara D. Underwood."