‘Outrageous’: Legal Experts Slam Trump’s ‘Illegal’ Decree Declaring Undocumented Immigrants Not Persons, Do Not Count

President Donald Trump on Tuesday signed a memorandum declaring undocumented immigrants are not to be counted when the number of U.S. Representatives for each state is allotted. That process, called “apportionment,” occurs every ten years after the official national census is conducted.

The U.S. Constitution mandates the census, which is being conducted this year, count “the whole number of persons in each state.” It makes no distinction as to their citizenship status.

What Trump is doing is claiming he has the authority to bypass the Constitution and declare undocumented immigrants are not “persons,” and therefore, literally, do not count.

The intention and effect, clearly, would be to create more Republican-leaning congressional seats and reduce the number of Democratic-leaning congressional seats.

The move follows a hard-fought campaign by the Trump administration to add a citizenship question to the census. The Supreme Court blocked Trump in that fight and it was not included.

Legal experts are calling Trump’s move today “outrageous,” “illegal,” and say it unconstitutional.

U.S. Senator Kamala Harris (D-CA) accused Trump of “once again trying to weaponize the Census to scare immigrant communities for his own political purposes. This is patently unconstitutional and should be immediately challenged in court.”

Calling it “flagrantly unconstitutional to exclude people from the Census count based on their immigration status,” U.S. Senator Elizabeth Warren (D-MA) said the “Constitution requires that every person be counted. This is another attempt by Trump to use scaremongering against immigrants & rig the system.”

Slate’s legal expert, journalist Mark Joseph Stern calls the decree “Stupid, impracticable, and illegal.” He adds:

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.”

Trump says undocumented immigrants aren’t “persons” under the Constitution. That’s Dred Scott stuff.

— Mark Joseph Stern (@mjs_DC) July 21, 2020

NPR’s national correspondent reporting on the 2020 Census, Hansi Lo Wang, says Trump has “has no final authority” over the census:

BREAKING: President Trump, who has no final authority over #2020Census (Congress does), is signing a memo calling for unauthorized immigrants to be excluded from constitutionally-mandated count of every person living in the U.S. used to divide up seats in Congress, @NPR confirms https://t.co/Zm0TlZCJ9c

— Hansi Lo Wang (@hansilowang) July 21, 2020

Speaker, Mother Jones journalist, and a leading expert on voting rights, Ari Berman calls it “blatantly unconstitutional.”

Trump census memo today part of broader strategy to preserve white GOP electoral power by excluding millions of immigrants, children & people of color from political representation

Read my @motherjones feature from earlier this yearhttps://t.co/e7xBfySPYy

— Ari Berman (@AriBerman) July 21, 2020

National Security Professor of Law at the University of Texas School of Law:

Multiple district courts will enjoin Trump’s blatantly unconstitutional executive order excluding undocumented immigrants from the Census—and courts of appeals will deny stays.

It will come down to how Chief Justice Roberts votes on the inevitable DOJ stay request that follows.

— Steve Vladeck (@steve_vladeck) July 21, 2020

The ACLU said: “We’ll see him in court — and win — again.”

founding Executive Director of the Institute for Constitutional Advocacy and Protection, Visiting Professor of Law at Georgetown University Law Center:

“It should be legally impossible as well as factually difficult to do.”

That's my bottom line on Trump's new census memo.

More from me & the great @MarielenaNILC via @katierogers & @peterbakernyt: https://t.co/qmmmlbhzzV

— Joshua A. Geltzer (@jgeltzer) July 21, 2020