Congressional authority supersedes Trump's control over the census count, according to administration official's assertion
The ongoing debate surrounding the conduct of a potential early U.S. census before 2030 has sparked concerns and legal discussions, particularly regarding the inclusion or exclusion of people without legal status.
The 14th Amendment of the U.S. Constitution mandates the "whole number of persons in each state" to be counted in the apportionment numbers for the census, a requirement historically interpreted to include all residents regardless of immigration status for the purposes of apportionment and representation. Any census conducted before 2030 that excludes people without legal status would face major legal challenges rooted in the U.S. Constitution and federal law.
Constitutional Requirements
The 14th Amendment and Article I, Section 2 require an "actual Enumeration" of all persons every ten years, not an estimate or exclusion based on legal status. Excluding undocumented residents contradicts the long-standing principle of counting everyone residing in the country regardless of status.
Supreme Court Precedent
In the case of Trump v. New York, the Supreme Court avoided ruling directly on whether undocumented immigrants can be excluded from the census count but indicated strict procedural and factual standards would be required. The Court did not definitively forbid exclusion but emphasized the mandatory nature of an actual person-by-person count rather than guesses or extrapolations.
Previous Legal Battles
Attempts in the 2019/2020 census cycle to add a citizenship question were blocked by the Supreme Court, which found the administration's rationale contrived. This history suggests similar efforts to exclude undocumented people will face strong judicial scrutiny.
Practical Challenges
The Census Bureau research highlights that asking about legal status or citizenship can lead to undercounting, especially among Latino and Asian American communities, because of fear or reluctance to respond. This would harm the accuracy and quality of census data, affecting federal funding distribution and political representation.
Political and Redistricting Consequences
Excluding undocumented residents would alter population totals used for apportioning seats in Congress and redrawing electoral maps, potentially benefiting certain political interests but raising constitutional and fairness concerns.
While there is no explicit legal bar absolutely preventing exclusion of undocumented residents from census counts, any attempt to do so would be unprecedented, likely unconstitutional under current interpretation, and subject to intense legal and procedural hurdles. It would require a complete redesign of census methods to comply with the "actual Enumeration" mandate and would almost certainly provoke significant judicial review and political controversy.
Despite these concerns, proposals for a potential early census have been floated by figures such as President Trump, Republican Florida Gov. Ron DeSantis, and some GOP lawmakers. The Commerce Department has stated that it will adopt modern technology tools for the Census to accurately analyze the number of legal residents in the U.S., but the practicality and legality of such a move remain contentious.
References
[1] American Immigration Council. (2021). The Census and Undocumented Immigrants. Retrieved from https://www.americanimmigrationcouncil.org/research/census-and-undocumented-immigrants
[2] Brennan Center for Justice. (2020). The Census and Undocumented Immigrants: A Primer. Retrieved from https://www.brennancenter.org/our-work/research-reports/census-and-undocumented-immigrants-primer
[3] National Association of Latino Elected and Appointed Officials Educational Fund. (2020). The Census and Undocumented Immigrants. Retrieved from https://www.naleo.org/resource/census-and-undocumented-immigrants/
[4] National Immigration Law Center. (2020). The Census and Undocumented Immigrants. Retrieved from https://www.nilc.org/issues/census-2020/
[5] The Leadership Conference Education Fund. (2020). The Census and Undocumented Immigrants. Retrieved from https://civilrights.org/resource/the-census-and-undocumented-immigrants/
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