(WASHINGTON, D.C.) - Today, Rep. Carolyn B. Maloney, the Chairwoman of the Committee on Oversight and Reform, and Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, issued the following statements after the Trump Administration released a legal memorandum attempting to ban undocumented immigrants from being counted in the 2020 Census:

“President Trump’s latest effort to exclude undocumented immigrants from the 2020 Census count is flatly unconstitutional, and it demonstrates once again that President Trump will stop at nothing to politicize our democratic institutions and harm entire communities for his own political interests,” said Chairwoman Maloney.  “The Supreme Court already struck down the Trump Administration’s craven attempt to add a citizenship question to the Census, and today’s action is exactly what the Trump Administration claimed over and over they were not going to do.  Taking this step right in the middle of the ongoing Census is particularly egregious and sinister because it appears purposefully designed to depress the count, deter people from filling out their forms, and corrupt the democratic processes on which our nation is founded.”

“Today’s memorandum shows President Trump’s inexhaustible contempt for our constitutional system and the rule of law,” said Chairman Raskin.  “The U.S. Constitution requires ‘an actual Enumeration’ of the ‘whole number of persons’ in the country for ‘apportioning representatives among the states in Congress.’  By excluding undocumented immigrants from apportionment or redistricting, this Administration departs from more than two centuries of practice and constitutional understanding.  We fought and defeated the President’s last attempt to scrawl his anti-immigrant graffiti all over the Census, and we’ll stop him again now.”

Background

The Oversight Committee will hold an emergency hearing on the Census next week, and is considering additional steps to respond to the President’s unconstitutional action. 

Today’s legal memorandum contradicts numerous previous statements from the Trump Administration that they were not seeking to exclude immigrants from the census—or from congressional apportionment:

• Last year, Commerce Secretary Wilbur Ross testified under oath before the Oversight Committee that the decision to add a citizenship question to the 2020 Census had nothing to do with counting undocumented immigrants for apportionment purposes.  Ross stated, “the Department of Commerce is fully committed to administering as complete and accurate decennial census as we can.  We intend to try to count every person taking all necessary actions to do so.”

• At the same hearing, Secretary Ross stated:  “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted.”

• At an Oversight Committee hearing earlier this year, the Director of the Census Bureau, Dr. Steven Dillingham, was asked whether the census would count someone “here just illegally.”  He responded, “Congressman, we count everyone, wherever they are living.”

• In court proceedings, the Department of Justice stated that the Administration’s attempt to add a citizenship question was not meant to exclude noncitizens from the 2020 Census.  Brett Shumate, a lawyer with the Justice Department, argued that because the questionnaire goes to every single household, and because responding to the census is required by law, the government was not seeking to exclude anyone.

• Republican operative Thomas Hofeller wrote in 2015 that excluding undocumented immigrants from the redistricting counts would be “would be advantageous to Republicans and Non-Hispanic Whites.”  The Department of Justice claimed in a court filing last year that apparent connections between that memo and the Administration’s attempt to add a citizenship question were “only smoke and mirrors.”

• DOJ claimed in a court filing that “The number-one priority of the President, the Secretary, and the Department as a whole with regard to the census was, and remains, to conduct a ‘complete and accurate census’ and asserted the effort to add the citizenship question was “designed to protect minority groups.”

The President’s legal memorandum is patently unconstitutional and illegal.

• Article I of the Constitution requires an “actual Enumeration” every ten years to determine congressional apportionment, and the Fourteenth Amendment states:  “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

• 2 U.S.C. §2a states:  “the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under ... each ... decennial census of the population.”

• The Constitution also makes clear that the Congress is empowered to determine how the census is conducted, not the President.

The decennial census drives the distribution of over $1.5 trillion in federal funding and representation at every level of government, from Congress to School Board.

In July 2019, the House of Representatives voted to hold Secretary Ross and Attorney General Bill Barr in criminal contempt for defying bipartisan subpoenas authorized by the Oversight Committee and withholding key documents regarding the Administration’s addition of a citizenship question to the 2020 Census. 

The House vote came after the Supreme Court ruled that the Administration’s claimed rationale for adding the citizenship question was a “pretext,” “contrived,” and “incongruent with what the record reveals.”

###