Trump Admin Fights To Keep Illegal Immigrants From Distorting Census

Ben Weingarten

The Federalist

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Trump Admin Fights To Keep Illegal Immigrants From Distorting Census

The Census Bureau recently announced its plan to administer a survey that includes the query ‘Is this person a citizen of the United States?’

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During the first Trump administration its opponents battled it all the way to the Supreme Court over a seemingly mundane initiative: The president’s effort to reinstate a simple citizenship question on the 2020 census. In a little-noticed move, the second Trump administration may have just re-ignited that battle — one that could presage a much broader war over citizenship, the 2030 census, and whether illegal aliens will continue to distort political maps to be drawn after that count takes place.

On Feb. 3, the Census Bureau issued a regulatory notice indicating its plan to administer a survey that includes the query “Is this person a citizen of the United States?” as part of a major “operational test in support” of the next decennial census in 2030. The inclusion of that question in the 2026 field test, the first of two before the 2030 census, suggests the administration may intend to reinstate a question asked of respondents without issue for well over a century prior to 1960, and that some 3.5 million people continue to respond to annually via the Census Bureau’s American Community Survey (ACS). The ACS, which also asks about place of birth and year of entry, is the survey the bureau plans to administer for its 2026 test, according to the regulatory notice.

There are myriad straightforward reasons for posing such a question when collecting nationwide data, beyond the obvious point that knowing who is living in America is among the most basic pieces of information Americans and our leaders should possess.

The first Trump administration laid out its rationale in a 2019 executive order that the Biden administration would later rescind. It argued that the more complete and accurate citizenship data would aid in:

Fundamentally restructuring and modernizing immigration laws and policies with respect to assimilation.

Implementing federal programs and evaluating changes to them, particularly regarding benefits.

Estimating the illegal alien population overall and by state — which the administration could do by comparing census citizenship data with records of aliens lawfully present — with implications for myriad additional policies.

Providing states with accurate citizenship data, which they could use for drawing legislative districts based upon voter-eligible population figures — as some states have indicated they would like to pursue, and the Supreme Court has indicated it may abide.

The invasion that Biden ushered in only strengthened each of these arguments.

Progressives’ Objections

When progressive forces sued the first Trump administration over its efforts to reinstate the citizenship question, they claimed doing so would chill respondents, leading to an unconstitutional census undercount. But the law strictly prohibits the Census Bureau from sharing any identifiable information it collects with law enforcement agencies.

Progressives also objected despite conflicting estimates about how adding the question would impact response rates, and despite the fact that no person filling out the survey should have had any fear about self-incrimination. A non-citizen may only indicate that he is “not a U.S. citizen.” There is no option in the survey for such a respondent to denote that he is here illegally, nor anything else regarding his immigration status. Foes also raised technical objections to the policy and how it was formulated.

Supreme Court’s Ruling

Ultimately, the Supreme Court took up the case. It ruled that presidents may lawfully include a citizenship question in the census. And it found that the Commerce Department, under which the Census Bureau sits, had reasonably weighed the costs — including of a potential undercount — and benefits in rendering its decision to reinstate the citizenship question.

But the nation’s highest court effectively blocked the Trump administration from adding the question anyway. In a majority decision that Justice Clarence Thomas cast as an “an unprecedented departure from our deferential review of discretionary agency decisions,” Chief Justice John Roberts held for the court in Department of Commerce v. New York that the Trump administration’s policy need be halted because its sole stated reason for reinstating the question “seems to have been contrived.”

Commerce’s rationale for reinstating the question was that it would enable it to collect block level citizenship data requested by the Justice Department for use in enforcing the Voting Rights Act. The court claimed, however, that the Commerce Department “went to great lengths to elicit the request from DOJ (or any other agency),” and therefore that it was being disingenuous, in conflict with administrative law, which requires agencies to provide “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

“We do not hold that the agency decision here was substantively invalid,” Chief Justice Roberts wrote. “But agencies must pursue their goals reasonably. Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

Given that the ruling came down in June 2019, there was insufficient time before the 2020 census for the Commerce Department to attempt to reinstate the citizenship question on alternative grounds and successfully mount a legal defense to the inevitable challenges it would again face in the courts.

Many Ill Effects of Counting Illegals

With its prior experience, the second Trump administration should be able to reinstate a citizenship question this time. U.S. citizens have a right to citizenship information, and our political authorities have a responsibility to collect and provide it to us.

Those authorities also have a responsibility to protect our political system from the foreign interference of counting tens of millions of illegal aliens in the census. Census figures are used to apportion House seats, redistrict, and redistribute billions of dollars in public largesse annually.

Including non-citizens in the census has therefore had the effect of skewing the relative political power of the states in Congress and the Electoral College — generally to the benefit of blue states over red ones, with Texas and Florida notable exceptions. States with greater non-citizen populations have been unfairly rewarded with more representatives and greater sway over presidential elections than their counterparts.

The inclusion of non-citizens also perversely incentivizes sanctuary policies, since areas with greater illegal alien populations receive disproportionate political representation and power.

As I reported at RealClearInvestigations last year, the Trump administration has taken steps that lay the groundwork to exclude illegal aliens from the census. President Trump himself stated directly in August that “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.” And as I recently wrote, there is pending litigation against the Trump administration that could ultimately culminate in court decisions that would sustain such policies in advance of the 2030 census.

Many questions remain: Will the administration seek to prohibit not only illegal aliens, but other classes of non-citizens from the census? If other classes of non-citizens remain, will the administration seek to remove them from the figures used for apportionment and related processes? How, practically, will the administration go about enacting and implementing these policies? Can it litigate and secure the victories necessary to sustain them? And what will it do to ensure the policies stick regardless of who the next president is?

The Trump administration is responsible for providing Congress in April 2027 with the subjects and types of information it will seek in the census. It will present the questions proposed to be included in April 2028. That may make it technically difficult for its successor to meaningfully change course.

But ultimately, the next president will preside over the enumeration and apportionment processes. And if it is a Democrat, almost assuredly that president will take every step possible to abandon the Trump administration’s policy.

The uncertainty only underscores how the administration must take vigorous, strategic action in defense of the American people.

American Community Survey

Department of Commerce v. New York

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Trump Admin Fights To Keep Illegal Immigrants From Distorting Census

Ben Weingarten

© The Federalist