California is challenging a Trump administration effort to exclude people who reside in the United States without legal permission from the census numbers used to allocate congressional districts.
On July 28, California Attorney General Xavier Becerra filed a lawsuit arguing that the July 21 presidential memorandum entitled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” violates separation of powers principles, the Administrative Procedure Act (APA), and the U.S. Constitution.
Becerra argues that Congress did not authorize President Trump to make the exclusion, and that the U.S. Commerce Department, which governs the U.S. Census Bureau, must first go through APA-required notice-and-comment rulemaking procedures in order to change its rule that census officials must count all persons at the residence where they sleep most of the time.
According to the presidential memorandum, “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 State’s boundaries at the time of the census.” Becerra argues that the policy outlined in the memorandum would deprive California of what he called its rightful share of congressional representatives and depress the 2020 census count.
The memorandum adds that, “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 addition, “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.”
The United States District Court for the Northern District of California will now decide whether to block the Trump administration’s new census policy.
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- Administrative Procedure Act
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- Administrative state