Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census
Article One sets up the structure and functions of the legislative branch. I'm not sure how a memorandum emanating from the White House is supposed to take precedence over the Constitution.
Article One of the United States Constitution
PRESIDENTIAL MEMORANDA
Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census
IMMIGRATION
Issued on: July 21, 2020
MEMORANDUM FOR THE SECRETARY OF COMMERCE
SUBJECT: Excluding Illegal Aliens From the Apportionment
Base Following the 2020 Census
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Background. In order to apportion Representatives among the States, the Constitution requires the enumeration of the population of the United States every 10 years and grants the Congress the power and discretion to direct the manner in which this decennial census is conducted (U.S. Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of Commerce (the Secretary) with directing the conduct of the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). By the direction of the Congress, the Secretary then transmits to the President the report of his tabulation of total population for the apportionment of Representatives in the Congress (13 U.S.C. 141(b)). The President, by law, makes the final determination regarding the whole number of persons in each State, which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided that it is the Presidents personal transmittal of the report to Congress that settles the apportionment of Representatives among the States, and the Presidents discretion to settle the apportionment is more than ceremonial or ministerial and is essential to the integrity of the process (Franklin v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the persons in each State, excluding Indians not taxed, to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a States boundaries at the time of the census. Instead, the term persons in each State has been interpreted to mean that only the inhabitants of each State should be included. Determining which persons should be considered inhabitants for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are persons who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically in a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an inhabitant includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.
In Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census), I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country. As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the purpose of conducting the apportionment, and we intended to examine that issue.
Sec. 2. Policy. 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives. Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the States entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.
I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the Presidents discretion under the law.
Sec. 3. Excluding Illegal Aliens from the Apportionment Base. In preparing his report to the President under section 141(b) of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the Presidents discretion to carry out the policy set forth in section 2 of this memorandum. The Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (Feb. 8, 2018).
Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census
IMMIGRATION
Issued on: July 21, 2020
MEMORANDUM FOR THE SECRETARY OF COMMERCE
SUBJECT: Excluding Illegal Aliens From the Apportionment
Base Following the 2020 Census
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Background. In order to apportion Representatives among the States, the Constitution requires the enumeration of the population of the United States every 10 years and grants the Congress the power and discretion to direct the manner in which this decennial census is conducted (U.S. Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of Commerce (the Secretary) with directing the conduct of the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). By the direction of the Congress, the Secretary then transmits to the President the report of his tabulation of total population for the apportionment of Representatives in the Congress (13 U.S.C. 141(b)). The President, by law, makes the final determination regarding the whole number of persons in each State, which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided that it is the Presidents personal transmittal of the report to Congress that settles the apportionment of Representatives among the States, and the Presidents discretion to settle the apportionment is more than ceremonial or ministerial and is essential to the integrity of the process (Franklin v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the persons in each State, excluding Indians not taxed, to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a States boundaries at the time of the census. Instead, the term persons in each State has been interpreted to mean that only the inhabitants of each State should be included. Determining which persons should be considered inhabitants for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are persons who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically in a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an inhabitant includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.
In Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census), I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country. As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the purpose of conducting the apportionment, and we intended to examine that issue.
Sec. 2. Policy. 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives. Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the States entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.
I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the Presidents discretion under the law.
Sec. 3. Excluding Illegal Aliens from the Apportionment Base. In preparing his report to the President under section 141(b) of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the Presidents discretion to carry out the policy set forth in section 2 of this memorandum. The Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (Feb. 8, 2018).
Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
InfoView thread info, including edit history
TrashPut this thread in your Trash Can (My DU » Trash Can)
BookmarkAdd this thread to your Bookmarks (My DU » Bookmarks)
9 replies, 1079 views
ShareGet links to this post and/or share on social media
AlertAlert this post for a rule violation
PowersThere are no powers you can use on this post
EditCannot edit other people's posts
ReplyReply to this post
EditCannot edit other people's posts
Rec (2)
ReplyReply to this post
9 replies
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (Original Post)
mahatmakanejeeves
Jul 2020
OP
Multiple district courts will enjoin Trump's blatantly unconstitutional executive order ...
mahatmakanejeeves
Jul 2020
#7
Walleye
(31,062 posts)1. Is there an immigration status question on the census form?
I dont remember seeing one
lamp_shade
(14,844 posts)3. Nope...
Walleye
(31,062 posts)8. So trump is spouting nonsense again. Thanks!
C_U_L8R
(45,021 posts)2. Trump's vanity memos mean squat.
Trump is a feckless fool with no ability to lead legislation like many competent Presidents have before. Trump is a joke.
Gothmog
(145,619 posts)4. This is all you need to know about Trump's action today
mahatmakanejeeves
(57,621 posts)5. Wait, wait, wait. You're sayin' Trump is mistaken?
Replying to
@steve_vladeck
Chief Justice Roberts will go by the text of the 14th Amendment:
"Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, ... "
https://law.cornell.edu/constitution/amendmentxiv
Link to tweet
Gothmog
(145,619 posts)9. This will be fun to watch
Link to tweet
?s=20
mahatmakanejeeves
(57,621 posts)6. Trump's Statement Regarding Apportionment; July 21, 2020
STATEMENTS & RELEASES
Statement from the President Regarding Apportionment
IMMIGRATION
Issued on: July 21, 2020
Last summer in the Rose Garden, I told the American people that I would not back down in my effort to determine the citizenship status of the United States population. Today, I am following through on that commitment by directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.
There used to be a time when you could proudly declare, I am a citizen of the United States. But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.
Todays action to exclude illegal aliens from the apportionment base reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy. My Administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government. Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all.
Under an Executive Order I signed last year, Federal departments and agencies have been collecting the information needed to conduct an accurate census and inform responsible decisions about public policy, voting rights, and representation in Congress. Todays action further advances this effort and is another example of my Administrations commitment to faithfully representing the citizens of the United States and putting their interests first.
Statement from the President Regarding Apportionment
IMMIGRATION
Issued on: July 21, 2020
Last summer in the Rose Garden, I told the American people that I would not back down in my effort to determine the citizenship status of the United States population. Today, I am following through on that commitment by directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.
There used to be a time when you could proudly declare, I am a citizen of the United States. But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.
Todays action to exclude illegal aliens from the apportionment base reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy. My Administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government. Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all.
Under an Executive Order I signed last year, Federal departments and agencies have been collecting the information needed to conduct an accurate census and inform responsible decisions about public policy, voting rights, and representation in Congress. Todays action further advances this effort and is another example of my Administrations commitment to faithfully representing the citizens of the United States and putting their interests first.
mahatmakanejeeves
(57,621 posts)7. Multiple district courts will enjoin Trump's blatantly unconstitutional executive order ...
Multiple district courts will enjoin Trumps blatantly unconstitutional executive order excluding undocumented immigrants from the Censusand courts of appeals will deny stays.
It will come down to how Chief Justice Roberts votes on the inevitable DOJ stay request that follows.
Link to tweet