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Trump Sued Over Attempt To Omit Unauthorized Immigrants From A Key Census Count

Demonstrators rally outside the U.S. Supreme Court in April 2019 to protest against the Trump administration's efforts to add the now-blocked citizenship question to the 2020 census.
J. Scott Applewhite
Demonstrators rally outside the U.S. Supreme Court in April 2019 to protest against the Trump administration's efforts to add the now-blocked citizenship question to the 2020 census.

Updated at 9:15 p.m. ET

The legal fight is heating up over President Trump's call to make an unprecedented change to the population numbers used to divide up seats in Congress among the states.

Trump now faces a total of three new federal lawsuits that are joining ongoing legal challenges surrounding the 2020 census. A fourth lawsuit may be coming from California State Attorney General Xavier Becerra's office, which is planning to file a complaint against the Trump administration, Sarah Lovenheim, an adviser to Becerra, tells NPR.

Groups led by Common Cause, a government watchdog group, launched the first federal lawsuit this week. Their complaint was filed in U.S. District Court for the District of Columbia on Thursday, two days after Trump issued a memo calling to exclude unauthorized immigrants from the constitutionally mandated count of every person living in the country that is used to redistribute seats in the House of Representatives.

On Friday, a New York state-led coalition of 20 states, plus some cities and other localities, filed a challenge in U.S. District Court for the Southern District of New York. In their complaint, which cites NPR's reporting, the challengers allege constitutional violations, as well as a claim that the administration violated the Administrative Procedure Act by making an "arbitrary and capricious" decision to exclude unauthorized immigrants from the apportionment count when they don't have the data to reliably do so.

In this week's third complaint, which also cites NPR's reporting, immigrant rights groups represented by the American Civil Liberties Union and New York Civil Liberties Union argue that the directives of Trump's memo also violate administrative law by effectively ordering the Census Bureau to produce population data in a way that has not gone through the proper rulemaking process.

"Government action denying the personhood of people living in the United States echoes the darkest chapters of American constitutional history," the complaint says, citing the 1857 U.S. Supreme Court decision in Dred Scott v. Sandford that declared Black people could not be U.S. citizens but was later overturned by the 13th and 14th Amendments.

The Constitution — which empowers Congress, not the president, with final authority over the census — requires a once-a-decade count of the "whole number of persons in each state" to determine how to reapportion congressional seats and, by extension, Electoral College votes.

Trump, however, has ordered information to be produced that would allow him to exclude the number of immigrants living in the U.S. without authorization from the latest state population counts that the president is legally required to deliver to Congress after the census is complete.

"It's another election-year tactic to fire up his base by dehumanizing immigrants and using them as scapegoats for his failures as a leader," said New York State Attorney General Letitia James in a written statement. "No one ceases to be a person because they lack documentation, which is why we filed this lawsuit."

If unauthorized immigrants are left out of the apportionment count, California, Florida and Texas are each likely to end up with one less House seat, while Alabama, Minnesota and Ohio are each likely to hold onto a seat they would have otherwise lost after the 2020 census, according to estimates the Pew Research Center released on Friday.

Connecting the memo with the administration's failed attempt to add the now-blocked citizenship question to the 2020 census, the plaintiffs in Common Cause's lawsuit allege that all of the efforts are "part of an unconstitutional concerted effort to shift political power away from racial and ethnic minorities, chiefly Latinos" to Republicans and non-Hispanic white people.

They are asking a federal judge to declare the president's memo in violation of the Constitution and federal laws as well as to block the administration from carrying it out and the clerk of the House from certifying an apportionment count delivered by the president that does not include people "on the basis of their citizenship or immigration status."

Among the other plaintiffs in Common Cause's lawsuit are the cities of Atlanta and Paterson, N.J., a refugee advocacy organization based in San Diego called Partnership for the Advancement of New Americans, and a group of individual U.S. citizens who live in New York and Florida — all of whom allege that because they are in areas with an "above-average number of undocumented immigrants," Trump's memo would hurt their rights to fair representation in Congress.

The Justice Department declined to comment on the lawsuits, DOJ spokesperson Brianna Herlihy said in an email. The White House did not respond on the record to NPR's request for comment. The Census Bureau and the Commerce Department, which oversees the bureau and is named as a defendant in the new cases, did not respond to NPR's inquiries.

These new lawsuits join an ongoing legal challenge based in Birmingham, Ala., about who counts for congressional apportionment. The state of Alabama filed that suit in 2018 to try to avoid losing a U.S. House seat. It is arguing against the Census Bureau's long-standing policy of including unauthorized immigrants in the apportionment count.

Attorneys with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice - AAJC are also preparing to challenge Trump's memo as part of an ongoing federal lawsuit over the administration's efforts to use government records to produce citizenship data. They are expected to file an amended complaint with the U.S. District Court for the District of Maryland by Aug. 12

"We, unfortunately, anticipated that this kind of lawless memorandum would one day come from this administration," says Thomas Saenz, president and general counsel for the Mexican American Legal Defense and Educational Fund.

In a court filing released Wednesday, Terry Ao Minnis — an attorney who directs census and voting programs at Asian Americans Advancing Justice - AAJC — argued that there is a "close relationship" between the administration's efforts to produce more detailed data about U.S. citizens and its efforts for a count of unauthorized immigrants. Both come with the "same attendant issues of lack of accuracy and discrimination against Latinos, non-U.S. citizens and those who live near non-U.S. citizens," Minnis wrote.

During a hearing for that same lawsuit, comments by a Justice Department attorney provided some insight into how far along the administration is in producing data to exclude unauthorized immigrants from the apportionment count.

"We don't have all the administrative records yet. We haven't formulated a methodology for how we would do this and things of that nature," Stephen Ehrlich told U.S. District Judge Paula Xinis of Maryland on Wednesday, adding later a potential need for "some statistical modeling."

In 1999, theSupreme Court ruled that census data produced using statistical sampling cannot be used to reapportion Congress.

The latest legal challenges push the 2020 census further into a growing political firestorm as the national head count struggles to overcome pandemic-induced delays. It is still unclear whether Congress will grant the Census Bureau's request for a four-month extension to the current legal deadline of Dec. 31 for delivering the 2020 census apportionment count to the president as well as the deadline for redistricting data on March 31.

Since Tuesday's announcement of Trump's memo, Democratic lawmakers have been quick to condemn the move.

Rep. Grace Meng, D-N.Y., introduced a bill Wednesday that would ban using federal funds to "implement, administer, enforce, or carry out" the memo's directives.

The House Oversight and Reform Committee is planning to hold an emergency hearing on Wednesday. Commerce Secretary Wilbur Ross, who oversees the bureau, Census Bureau Director Steven Dillingham and the bureau's chief scientist, John Abowd, have been invited to appear as witnesses, along with three former directors of the agency, according to a statement by the committee's chair, Rep. Carolyn Maloney, D-N.Y., who said the president's move "appears to be a blatant attempt to politicize the 2020 Census, depress participation, and undermine its accuracy."

Minutes after Common Cause issued a press release Thursday announcing its legal challenge, Trump's reelection campaign sent an email to supporters soliciting $23 donations by offering "an exact replica" of the pen the president used to sign the memo.

The president's memo makes no mention of excluding unauthorized immigrants from the census in general, only from the "apportionment base" used to redistribute House seats.

But the campaign's email described the memo as an "executive order" that was signed to "put America FIRST by blocking illegal aliens from receiving congressional representation and being counted in the U.S. Census."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.