President Trump signed a memorandum that seeks to exclude illegal immigrants from being counted in the next round of congressional redistricting.
Redistricting occurs for state legislature seats and at the federal level for U.S. House districts, known as congressional apportionment. The memo would affect the latter.
Trump’s memorandum, sent out by the White House Press Office on Tuesday, reads, “I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law.”
A senior Trump administration official told Reuters that the memo “is another decisive step toward fulfilling his solemn pledge to ensure only American citizens have congressional representation, not illegal aliens.” The president signed the memo on Tuesday at 1:10 p.m. EDT in the Oval Office.
The memo is expected to face legal challenges in the court system. As it applies to congressional apportionment, the Constitution says, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”
In 2016, the Supreme Court unanimously ruled that apportioning legislative districts by total population rather than eligibility to vote is required by the 14th Amendment to the Constitution.
“All of this makes Trump’s position outrageous,” said Georgetown professor of law Joshua Geltzer, adding that he believes the move will almost certainly be met with legal challenges.
In the memo, the president addresses the constitutionality question, stating the Constitution does not “specifically define which persons must be included in the apportionment base.”
“Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census,” the memo reads.
“Instead, the term ‘persons in each State’ has been interpreted to mean that only the ‘inhabitants’ of each State should be included. Determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are “persons” who have been excluded from the apportionment base in past censuses,” the document continues.
The memorandum also argues that the Constitution does not exclude individuals not physically within the United States, citing overseas federal personnel as an example.
“The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status,” the memo reads.
The memo may invigorate the president’s base of support. Polls show Trump trails former Vice President Joe Biden in the upcoming 2020 election.
