President Donald Trump should be concerned about the accuracy of the census, especially since the last one undercounted in Republican states, costing them six net seats in the House. However, a mid-decade census would not only be unprecedented but also logistically impossible, as it takes years to plan and hire for. Additionally, while Trump has every right to insist the census include a question about immigration status, the Constitution is clear that all those counted must be included in House apportionment. Trump will have to get a Constitutional amendment to change that.
Trump’s fusing of illegal immigration and the census is not new. In December 2017, during his first term in office, Trump’s Justice Department sent a letter to the Commerce Department requesting a citizenship question be added to the 2020 census to help enforce Section 2 of the 1965 Voting Rights Act, which bans racial discrimination in voting.
In March 2018, purportedly in response to the DOJ request, then-Commerce Secretary Wilbur Ross announced that a question about immigration status would be added to the 2020 census. With the exception of 1840, the census previously had an immigration status question every year between 1820 and 2000.
Twelve Democratic states immediately sued the Commerce Department, seeking to block the immigration status question. They argued that its inclusion would depress response rates in immigrant communities, causing undercounts and thus depriving those states of additional representation in the House and government funding for programs determined by population size.
The case was argued all the way to the Supreme Court, which held that the Trump administration had legal authority to include an immigration question in the census questionnaire, as had been done in almost every census before. However, the court found that while there was evidence that including the question would lower response rates, not asking the question would deprive the census of a more accurate picture of how many immigrants were in the United States and what their immigration status was.
But, even though the Supreme Court found that the Commerce Department had the authority to include an immigration question, and that a decision to include the question was reasonable, it also found that the Commerce Department’s stated reason for adding the question was “pretextual,” meaning Ross had already made up his mind to include the question as a matter of policy before the DOJ made its Voting Right Act request. Because the Commerce Department gave a false justification for adding the question, the Supreme Court held that the proper procedures were not followed, and the question could not be included that year.
Despite the immigration question not being included in the 2020 census, the 2022 census updated its 2020 numbers and found that it undercounted people in six mostly red states while overcounting people in eight mostly blue states. Later analysis of the census update by the nonpartisan American Redistricting Project found that, using the correct numbers, the Republican states of Arizona, Florida, and Texas would have all gained a House seat, while the Democratic states of Colorado, Minnesota, and Rhode Island would all have lost seats. That means the census error cost the Republican Party six net seats in the House.
Trump’s anger at the U.S. Census Bureau’s inaccurate estimates of state populations in a pattern that universally helped Democrats and hurt Republicans is understandable. But it does not justify breaking centuries of precedent to produce a rushed and underfunded new census, nor does it justify counting illegal immigrants and then excluding them from the House apportionment process.
The 14th Amendment is explicitly clear, stating, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” Courts have always interpreted the whole number of persons to include illegal immigrants.
FLORIDA’S IMMIGRATION ENFORCEMENT MODEL
Trump is well within his rights to include an immigration question on the next census. It’s important to obtain the most accurate picture possible of everyone residing in the country, regardless of legal status. However, there is simply not enough time to conduct a new census before the 2026 House elections or the 2028 presidential race. And even if there were, the Constitution does not provide a legal basis for excluding illegal immigrants from the House apportionment process.
Trump would be better off spending his resources deporting as many illegal immigrants as possible and then ensuring the 2030 census doesn’t make the same errors that somehow managed to overcount Democrats and undercount Republicans.