A PEG Special: The Census — Recap of events and final accounting of undocumented immigrants
On January 18, 2021, Steven Dillingham, director of the Census Bureau, resigned from his position effective January 20, 2021. He was appointed by Trump in early 2019 with his term to expire at the end of 2021.
Trumps attempts to change the Census
During Dillingham's tenure, the Trump administration unsuccessfully tried to put a citizenship question on the 2020 census questionnaire, named a handful of political appointees to the Census Bureau, and issued two directives after the Supreme Court rejected the inclusion of the citizenship question. The first directive, issued in 2019, charged the Census Bureau to use administrative records to figure out who is in the country illegally. The second directive, released in 2020, instructed the Census Bureau to provide data that would allow Trump's administration to exclude people in the U.S. illegally from the numbers used for divvying up congressional seats among the states.
The purpose of these attempted changes to the Census was to impact the apportionment count, which determines the number of House seats and Electoral College votes for each state. The US News indicated that an influential GOP adviser had advocated excluding undocumented immigrants from the apportionment process to favor Republicans and non-Hispanic whites.
By law, congressional apportionment must be based on actual numbers, not estimates. The government never said how it planned to produce an actual tally of undocumented immigrants by state, which does not exist. The Constitution states that every person in each state should be counted. Historically, all persons, documented or not, were counted.
The above issues have been litigated many times and several federal courts blocked his efforts. In December 2020, the Supreme Court said it was too soon to rule on the case, thus postponing a decision on if this information could be used or if the question would be moot after Trump left office.
The straw that broke the camel’s back
Complaints by bureau employees resulted in a report by the Office of Inspector General stating that bureau workers indicated that they were under significant pressure from two Trump political appointees to figure out who is in the U.S. illegally, using federal and state administrative records. They stated that Dillingham had set a deadline of January 15, 2021, for bureau statisticians to provide him a technical report on the effort. One whistleblower told the Office of Inspector General that the work was “statistically indefensible” and others said they worried its release would tarnish the Census Bureau's reputation. After the release of the inspector general’s report, Dillingham ordered a halt to the efforts to produce data showing the citizenship status of every U.S. resident through administrative records.
Prior to Biden’s inauguration, the government lawyers signed an agreement that the bureau would not release state population data before Trump leaves office thus ending his attempt to exclude undocumented immigrants.
Biden’s Executive Order
In the afternoon of Wednesday, January 20, President Biden signed an executive order blocking the Census Bureau from excluding undocumented immigrants from data used to determine the number of seats in Congress and the number of Electoral College votes each state gets.
Article II, Section 1, Clause 5 of the Constitution states that a presidential candidate must be a natural born citizen of the United States, a resident for 12 years and 35 years of age or older.
The Heritage Foundation in its Guide to the Constitution provides an interesting discussion of each of these requirements as analyzed by legal scholars.