Dem
47
GOP
53
Donald Trump is leaving no stone unturned in his efforts to retain power for himself and the Republican Party. He has tried to rig the decennial census before and is about to start down that road again. What he is trying to do is have the census bureau categorize immigrants, both documented and undocumented ones, as not actually living in the United States. In his eyes, they are just visitors, even if they have been in the country for decades. Not counting immigrants will reduce the number of House seats and electoral votes for states with large numbers of immigrants. Many of them are blue states, but Texas and Florida also have large immigrant populations, which he is apparently forgetting. Maybe immigrants will count there. Here is the announcement of the proposed new rule that will not count immigrants in 2030. So far, almost no one has even noticed.
The Constitution's infamous enumeration clause, Art. I, Sec. 2, Clause 3, begins:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (Our emphasis)
The word it uses is "persons," not "citizens." The founders knew very well that there were noncitizens in the country, yet they used the word "persons." When they meant citizens, they said "citizens." The word "citizens" appears in the original text of the Constitution 11 times. This is probably going to be one of those court cases where the Republican appointees to the Supreme Court say: "What matters are the actual words in the Constitution—except when we don't like what the words say. Then we will 'interpret' them properly."
This is not the first time Trump has tried to use the census for political ends. In Trump v1.0, he tried to insert a question asking if each person enumerated was a citizen. The (secret) goal of having this question was to frighten Latinos into not answering the census questionnaire at all, thus undercounting them. In 2019, the Supreme Court ruled against the administration on technical grounds—basically, instructing it to be more careful in the exact wording next time. Now is next time.
The actual text of the rule hasn't been released yet, but it is expected to redefine what "resides" means. A foreign national with a foreign passport living in the U.S., legally or not, would be defined as "residing" in his or her home country for census and reapportionment purposes. As a side benefit, some federal program allocate money based on population, so not counting immigrants would probably reduce the amount of money going to immigrant-heavy states. Texas and Florida would be hit, too, but Trump could just compensate them some other way, just as he compensates farmers for the loss of foreign sales they are experiencing due to his tariffs.
The "beauty" of this rule is that it sounds so benign. Who but a census taker cares about the exact meaning of "resides"? To most people, that is like whether a college student at Berkeley for 9 months and back "home" in Chicago for 3 months gets to vote in California or Illinois. Or what about a family who is on vacation out of state on Census Day (April 1). Do they "reside" in the state they were on the day of the census or where they usually live? Historically, what has mattered is where someone actually lives.
This is a sleeper issue. Trump is trying to pull a fast one here. The one potential problem for Trump is that on Jan. 20, 2029, a new president could issue an XO ordering the Census Bureau to count all the persons, legal or not, rather than only citizens. There would still be 16 months to carry out this directive. (V)