Can the President really delete illegal immigrants from the Census count?

This story has been knocking around the media landscape for a few days, ever since the President signed an Executive Order saying that illegal immigrants would not be counted in the Census this year in terms of the allocation of federal funding and determining congressional apportionment among the states. The two most common classes of responses I saw to this news could be summed up into the categories of, “Wait… can he do that?” or, “There’s no way he can do that.” Falling firmly into the latter camp are the editors at the Los Angeles Times (I know… you’re shocked) who summarized the situation as follows.

President Trump on Tuesday directed his administration to exclude immigrants who are in the country illegally when calculating congressional representation, a decision that critics describe as unconstitutional and will likely face a swift court challenge.

“Respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base,” the president’s memo says.

The Constitution mandates an “actual Enumeration” every 10 years of “all persons” in the country, but the president has repeatedly tried to limit who is counted. He’s sided with nativist groups that have argued that the constitutional language was not intended to include people in the country without legal authorization.

I didn’t write about this news item immediately, primarily because I felt like a needed a little while to let it sink in. I’ve heard some of the arguments from people who agree with Trump on this, but they all seem to rely on interpreting the intent of the Founders rather than their actual words. With that in mind, I’ll confess to being a bit dubious.

You can say that Madison and his historic companions didn’t *intend” for people in the country illegally to be counted, but any solid proof for that idea seems to be thin at best. First of all, we still hadn’t really crafted a full and coherent policy regarding immigration at the time the Constitution was written. People were still just showing up on ships from around the world. Sometimes those arrivals were recorded, though not in any sort of formal government records, but many times there was no record of these arrivals at all unless you manage to locate ships manifests, personal letters or similar documents. While we did already have the concept of formal citizenship (“all persons born or naturalized”) we were still hammering out a lot of the details.

Federalist 54 goes on at great length about the debate over who would or wouldn’t be counted in the Census, though the focus is pretty much entirely on the question of whether or not to count slaves. And it breaks down into the questions of whether the enumeration is being applied toward taxation or toward representation. (Are the slaves people or are they property?) But even in that aspect of the debate, while property was looked at differently in terms of taxation, the slaves, having virtually no other rights of any kind, were still regarded as people, “being considered by our laws, in some respects, as persons, and in other respects as property.”

Carrying this forward, unless you’re trying to make the argument that illegal aliens aren’t technically people, it seems like a rather tenuous hook to hang your hat on.

There’s also the practicality of this order to consider. Everyone receiving the short form this year (roughly 83%) was not asked about their citizenship status. Many of those who were asked are expected to have failed to return their forms. How are we supposed to figure out which are which? I’m not sure setting up a small group of people who throw a dart at a wall to guesstimate the number of illegal aliens who answered the Census is going to fly.

This executive order was already being challenged before the ink in Trump’s signature was dry. And honestly, I’m having a hard time seeing how even any of the conservative justices on the Supreme Court would wind up going along with him here.

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