Trump’s Unconstitutional Census

The Supreme Court smacked him down last year—but he’s pushing ahead with his scheme to remake the census.
by Kim Wehle
July 30, 2020
Featured Image
Donald Trump speaks about immigration reform in the Rose Garden of the White House on May 16, 2019 in Washington, DC. (Photo by Alex Wong/Getty Images)

In June 2019, the U.S. Supreme Court issued a politically controversial decision in Department of Commerce v. New York, holding that Secretary of Commerce Wilbur Ross’s plan to ask about American citizenship on the U.S. Census form was arbitrary and capricious, in violation of the federal statute that governs agency decision-making. This was a blow for the Trump administration, which was trying to gin up an excuse to exclude non-citizens from the census count, depleting their home states’ representation in Congress as well as their share of the appropriations pie.

No one expected the rebuke from the high court to be the end of the story—and the next chapter began last week, when Trump issued a presidential directive entitled “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” It attempts to usurp from the U.S. Supreme Court the power to decide what the Constitution means when it talks about the census and apportionment.

In the world of constitutional scholarship, this is a big deal, which is why Attorney General Bill Barr was asked about it by House Democrats during his testimony on Tuesday. And again, this Trumpian power grab ignores established law.

Keep in mind that law in the United States is a hierarchy. The Constitution is at the top, then statutes passed by Congress, then regulations and other rules passed by federal agencies, and then decisions issued by courts (unless they’re interpreting the Constitution). The Constitution is the boss of legislation, which is the boss of regulations, and so on. By the same token, an agency cannot issue a regulation that overrides a statute or the Constitution, and Congress cannot pass an unconstitutional law. States each have their own constitutions and sets of laws too, but those can’t conflict with the U.S. Constitution, either, or in many instances, with federal statutory law.

It turns out that the Constitution has a fair amount to say about Trump’s new memorandum on the census.

The Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct.” Under the Census Act, Congress tasked the commerce secretary with conducting the decennial census “in such form and content as he may determine”—thus handing the census baton to a member of the president’s cabinet. But because the census power ultimately derives from Congress under the Constitution, the commerce secretary is bound to comply with statutory law when he conducts the census. That includes the Administrative Procedure Act, which basically requires agencies to have sound reasons for making policy decisions that smack of lawmaking. In the Department of Commerce case, the Supreme Court held that when Ross decided to ask about citizenship, he did so for bogus reasons, and sent him back to the drawing board.

Note that the Constitution’s Fourteenth Amendment goes on to state that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State” (emphasis added). What this means is that the commerce secretary must count actual heads—not just citizens or vegetarians or Mayflower descendants. Neither Congress nor the president nor Wilbur Ross can alter that requirement because the Constitution is the ultimate boss of all laws.

To be sure, the Supreme Court has, as the chief justice noted in his 2019 opinion, “assumed that Congress has the power to use the census for information-gathering purposes” (and to hand that power off to the commerce secretary) but that’s a far cry from allowing Congress or anybody else to use that data to limit which “whole persons” can be counted for purposes of dividing up the 435 members of the House of Representatives among the states.

Enter Trump’s memorandum from last week. In it, he admits that the Constitution says what it says, but weakly claims that its reference to “whole number of persons” is ambiguous as it “does not specifically define which persons must be included in the apportionment base.” But the Supreme Court already observed in 2016 that “States must draw congressional districts with populations as close to perfect equality as possible” and that “today, all States use total-population numbers from the census when designing congressional and state-legislative districts.” The Court also held in 1982 that an undocumented individual living in the United States “is a ‘person’ in any ordinary sense of that term,” “whatever his status under the immigration laws.”

In short, there has never been a legitimate argument raised that the Constitution only defines “whole persons” as only including citizens. Until Trump.

Trump’s lawyers (whose salaries include dollars supplied by non-citizens who pay taxes) go on in the memorandum to posit that the Constitution’s reference to “whole number of persons” doesn’t actually mean “every individual physically present within a State’s boundaries.” Instead, they argue, it means “inhabitants,” which—conveniently—they announce is a term that the executive branch has full discretion to define.

Bingo!

Despite the plain language of the Constitution and Supreme Court precedent, then, Trump has endowed himself with power to define “whole persons” so as “to exclude from the apportionment base aliens who are not in a lawful immigration status.” Or to put it in distasteful, bottom-line terms, people in the country illegally are not whole persons according to Trump. (But we knew that already.)

This is a problem for the separation of powers because the census power belongs to Congress, not the president, and because the Supreme Court has made clear that the president’s power to implement the Census Act is not unlimited, and because the Supreme Court has already interpreted apportionment to capture entire populations and to define “person” in the
“ordinary sense” that includes undocumented individuals living in the United States.

Lawsuits challenging the memorandum as unconstitutional are already pending. Yet this is cold comfort, as it’s hard to fathom that Trump cares what the Supreme Court might say next if he doesn’t seem to care much about what it has said already.

The answer to this abomination—once again—must lie, if anywhere, at the ballot box in November.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.