[EL] An explainer on Trump's memo re: disregarding undocumented aliens for purposes of reapportionment

[Marty Lederman]

A first cut
<https://balkin.blogspot.com/2020/07/trumps-memorandum-on-not-counting.html>.
Please let me know if you think I've gotten anything wrong, thanks.


On Tue, Jul 21, 2020 at 10:44 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> “With No Final Say, Trump Wants To Change Who Counts For Dividing Up
> Congress’ Seats” <https://electionlawblog.org/?p=113315>
>
> Posted on July 21, 2020 2:52 pm <https://electionlawblog.org/?p=113315>
> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
> Hansi Lo Wang
> <https://www.npr.org/2020/07/21/892340508/with-no-final-say-trump-wants-to-change-who-counts-for-dividing-up-congress-seat?utm_term=nprnews&utm_campaign=npr&utm_source=twitter.com&utm_medium=social> for
> NPR:
>
> *President Trump releaseda memorandum
> <https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/> Tuesday
> that calls for an unprecedented change to the constitutionally mandated
> count of every person living in the country — the exclusion of unauthorized
> immigrants from the numbers used to divide up seats in Congress among the
> states.*
>
> *The memo instructs Commerce Secretary Wilbur Ross, who oversees the
> Commerce Department, to include in the legally required
> <https://www.law.cornell.edu/uscode/text/13/141> report of census results
> to the president “information permitting the President, to the extent
> practicable” to leave out the number of immigrants living in the U.S.
> without authorization from the apportionment count.*
>
> *But the move by the president, who does not have final authority over the
> census, is more likely to spur legal challenges and political spectacle in
> the last months before this year’s presidential election than a
> transformation of the once-a-decade head count.*
>
> *Since the first U.S. census in 1790, both U.S. citizens and noncitizens —
> regardless of immigration status — have been included in the country’s
> official population counts.*
>
> *The fifth sentence of the Constitution
> <https://www.archives.gov/founding-docs/constitution-transcript> specifies
> that “persons” residing in the states should be counted every 10 years to
> determine each state’s share of seats in the House of Representatives. The
> 14th Amendment <https://www.law.cornell.edu/constitution/amendmentxiv> goes
> further to require the counting of the “whole number of persons in each
> state.”*
>
> *It is Congress — not the president — that Article 1
> <https://www.law.cornell.edu/constitution/articlei>, Section 2 of the
> country’s founding document empowers to carry out the “actual enumeration”
> of the country’s population in “such manner as they shall by law direct.”*
>
> *In Title 2 <https://www.law.cornell.edu/uscode/text/2/2a> of the U.S.
> Code, Congress detailed its instructions for the president to report to
> lawmakers the tally of the “whole number of persons” living in each state
> for the reapportionment of House seats. In Title 13
> <https://www.law.cornell.edu/uscode/text/13/141>, Congress established
> additional key dates for the “tabulation of total population.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D113315&title=%E2%80%9CWith%20No%20Final%20Say%2C%20Trump%20Wants%20To%20Change%20Who%20Counts%20For%20Dividing%20Up%20Congress%E2%80%99%20Seats%E2%80%9D>
>
> Posted in census litigation <https://electionlawblog.org/?cat=125>
>
>
>
>
>
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