WASHINGTON — President Donald Trump violated federal law when he ordered officials to exclude undocumented immigrants from census data used to calculate how many seats in Congress each state should get, a panel of federal judges ruled on Thursday.
The decision is the latest setback to Trump’s efforts to try to use the 2020 census to target undocumented immigrant communities — the US Supreme Court and a slew of lower courts previously blocked the administration’s attempt at adding a citizenship question, a move that even the Census Bureau said would depress the count in immigrant communities.
A special three-judge panel appointed to hear one of several pending challenges to Trump’s July order excluding undocumented immigrants from counting when congressional districts are redrawn ruled Thursday that federal law requires the Commerce Secretary to report a total count of all people living in the United States to the president. The president, in turn, is required to submit those same numbers to Congress, which are used to divide up seats in the US House of Representatives; there can’t be two sets of numbers in play, the court held.
For the purposes of the census, the judges continued, undocumented immigrants living in the United States at the time of the count fall under the Constitution’s requirement that all “persons” in a “State” should be included.
The opinion is 86 pages, but the judges made clear that in the end, it was not a hard call in ruling against the Trump administration.
“The merits of the parties’ dispute are not particularly close or complicated,” the judges wrote in a joint opinion.
Trump’s July order would exclude millions of undocumented immigrants from being counted when congressional districts are redone following the decennial census this year. The move could put some states at risk of losing representation in Congress, and Trump made it clear in the text of the order that the policy was intended to punish states with large populations of undocumented immigrants that politically also lean Democratic, such as California.
“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 memo stated.
The census has historically included undocumented immigrants, a fact the judges noted in Thursday’s decision.
“Throughout the Nation’s history, the figures used to determine the apportionment of Congress — in the language of the current statutes, the ‘total population’ and the ‘whole number of persons’ in each State — have included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without,” the judges wrote.
The court barred Commerce Secretary Wilbur Ross from including any information about citizenship status in the population numbers reported to the president at the end of the count. Although the Supreme Court blocked a citizenship question on the census form, it didn’t stop the administration from trying to use other data sources to determine how many undocumented immigrants live in the United States.
The judges agreed with New York and the other states that sued that Trump’s memo would have a “chilling effect” that would discourage immigrants households from participating.
“In short, the record supports a conclusion that the Presidential Memorandum has created, and is likely to create, widespread confusion among illegal aliens and others as to whether they should participate in the census, a confusion which has obvious deleterious effects on their participation rate,” the judges wrote.
The panel featured two judges from the US Court of Appeals for the 2nd Circuit, Judges Richard Wesley and Peter Hall, and US District Judge Jesse Furman of New York. Federal law requires the appointment of a three-judge panel in cases that deal with how congressional districts are drawn.
New York Attorney General Letitia James, who led a coalition of Democratic attorneys general in filing the case decided on Thursday, said in a statement, “We cannot allow the White House’s constant fearmongering and xenophobia to stop us from being counted. We urge everyone to fill out the census, if they have not already, and we will continue to take every legal action available to ensure all communities are counted, all communities are properly represented, and all communities get the federal funding they need and deserve.”
A Justice Department spokesperson did not immediately return a request for comment.
The Trump administration is separately fighting in court over a plan to end the 2020 census early, a move that opponents charge is aimed at depressing the count in areas with large immigrant populations, which historically require more time and in-person, door-to-door resources to get an accurate tally. On Sept. 5, a federal judge in California temporarily ordered the administration to halt efforts to end the count early, and is set to decide soon whether to make that order permanent.
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