Collecting Information About Citizenship Status in Connection With the Decennial Census

Federal Register, Volume 84 Issue 136 (Tuesday, July 16, 2019)
[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]
[Presidential Documents]
[Pages 33821-33825]
From the Federal Register Online via the Government Publishing Office []
[FR Doc No: 2019-15222]
                        Presidential Documents
Federal Register / Vol. 84 , No. 136 / Tuesday, July 16, 2019 /
Presidential Documents
Title 3--
The President
[[Page 33821]]
                Executive Order 13880 of July 11, 2019

Collecting Information About Citizenship Status
                in Connection With the Decennial Census
                By the authority vested in me as President by the
                Constitution and the laws of the United States of
                America, it is hereby ordered as follows:
                Section 1. Purpose. In Department of Commerce v. New
                York, No. 18-966 (June 27, 2019), the Supreme Court
                held that the Department of Commerce (Department) may,
                as a general matter, lawfully include a question
                inquiring about citizenship status on the decennial
                census and, more specifically, declined to hold that
                the Secretary of Commerce's decision to include such a
                question on the 2020 decennial census was
                ``substantively invalid.'' That ruling was not
                surprising, given that every decennial census from 1820
                to 2000 (with the single exception of 1840) asked at
                least some respondents about their citizenship status
                or place of birth. In addition, the Census Bureau has
                inquired since 2005 about citizenship on the American
                Community Survey--a separate questionnaire sent
                annually to about 2.5 percent of households.
                The Court determined, however, that the explanation the
                Department had provided for including such a question
                on the census was, in the circumstances of that case,
                insufficient to support the Department's decision. I
                disagree with the Court's ruling, because I believe
                that the Department's decision was fully supported by
                the rationale presented on the record before the
                Supreme Court.
                The Court's ruling, however, has now made it
                impossible, as a practical matter, to include a
                citizenship question on the 2020 decennial census
                questionnaire. After examining every possible
                alternative, the Attorney General and the Secretary of
                Commerce have informed me that the logistics and timing
                for carrying out the census, combined with delays from
                continuing litigation, leave no practical mechanism for
                including the question on the 2020 decennial census.
                Nevertheless, we shall ensure that accurate citizenship
                data is compiled in connection with the census by other
                means. To achieve that goal, I have determined that it
                is imperative that all executive departments and
                agencies (agencies) provide the Department the maximum
                assistance permissible, consistent with law, in
                determining the number of citizens and non-citizens in
                the country, including by providing any access that the
                Department may request to administrative records that
                may be useful in accomplishing that objective. When the
                Secretary of Commerce decided to include the
                citizenship question on the census, he determined that
                such a question, in combination with administrative
                records, would provide the most accurate and complete
                data. At that time, the Census Bureau had determined
                based on experience that administrative records to
                which it had access would enable it to determine
                citizenship status for approximately 90 percent of the
                population. At that point, the benefits of using
                administrative records were limited because the
                Department had not yet been able to access several
                additional important sets of records with critical
                information on citizenship. Under the Secretary of
                Commerce's decision memorandum directing the Census
                Bureau ``to further enhance its administrative record
                data sets'' and ``to obtain as many additional Federal
                and state administrative records as possible,'' the
                Department has sought access to several such sets of
                records maintained by other agencies, but it remains in
                negotiations to secure access.
[[Page 33822]]
                The executive action I am taking today will ensure that
                the Department will have access to all available
                records in time for use in conjunction with the census.
                Therefore, to eliminate delays and uncertainty, and to
                resolve any doubt about the duty of agencies to share
                data promptly with the Department, I am hereby ordering
                all agencies to share information requested by the
                Department to the maximum extent permissible under law.
                Access to the additional data identified in section 3
                of this order will ensure that administrative records
                provide more accurate and complete citizenship data
                than was previously available.
                I am also ordering the establishment of an interagency
                working group to improve access to administrative
                records, with a goal of making available to the
                Department administrative records showing citizenship
                data for 100 percent of the population. And I am
                ordering the Secretary of Commerce to consider
                mechanisms for ensuring that the Department's existing
                data-gathering efforts expand the collection of
                citizenship data in the future.
                Finally, I am directing the Department to strengthen
                its efforts, consistent with law, to obtain State
                administrative records concerning citizenship.
                Ensuring that the Department has available the best
                data on citizenship that administrative records can
                provide, consistent with law, is important for multiple
                reasons, including the following.
                First, data on the number of citizens and aliens in the
                country is needed to help us understand the effects of
                immigration on our country and to inform policymakers
                considering basic decisions about immigration policy.
                The Census Bureau has long maintained that citizenship
                data is one of the statistics that is ``essential for
                agencies and policy makers setting and evaluating
                immigration policies and laws.''
                Today, an accurate understanding of the number of
                citizens and the number of aliens in the country is
                central to any effort to reevaluate immigration policy.
                The United States has not fundamentally restructured
                its immigration system since 1965. I have explained
                many times that our outdated immigration laws no longer
                meet contemporary needs. My Administration is committed
                to modernizing immigration laws and policies, but the
                effort to undertake any fundamental reevaluation of
                immigration policy is hampered when we do not have the
                most complete data about the number of citizens and
                non-citizens in the country. If we are to undertake a
                genuine overhaul of our immigration laws and evaluate
                policies for encouraging the assimilation of
                immigrants, one of the basic informational building
                blocks we should know is how many non-citizens there
                are in the country.
                Second, the lack of complete data on numbers of
                citizens and aliens hinders the Federal Government's
                ability to implement specific programs and to evaluate
                policy proposals for changes in those programs. For
                example, the lack of such data limits our ability to
                evaluate policies concerning certain public benefits
                programs. It remains the immigration policy of the
                United States, as embodied in statutes passed by the
                Congress, that ``aliens within the Nation's borders
                [should] not depend on public resources to meet their
                needs, but rather rely on their own capabilities and
                the resources of their families, their sponsors, and
                private organizations'' and that ``the availability of
                public benefits [should] not constitute an incentive
                for immigration to the United States'' (8 U.S.C.
                1601(2)). The Congress has identified compelling
                Government interests in restricting public benefits
                ``in order to assure that aliens be self-reliant in
                accordance with national immigration policy'' and ``to
                remove the incentive for illegal immigration provided
                by the availability of public benefits'' (8 U.S.C.
                1601(5), (6)).
                Accordingly, aliens are restricted from eligibility for
                many public benefits. With limited exceptions, aliens
                are ineligible to receive supplemental security income
                or food stamps (8 U.S.C. 1612(a)). Aliens who are
                ``qualified aliens''--that is, lawful permanent
                residents, persons granted asylum, and certain
[[Page 33823]]
                other legal immigrants--are, with limited exceptions,
                ineligible to receive benefits through Temporary
                Assistance for Needy Families, Medicaid, and State
                Children's Health Insurance Program for 5 years after
                entry into the United States (8 U.S.C. 1613(a)). Aliens
                who are not ``qualified aliens,'' such as those
                unlawfully present, are generally ineligible for
                Federal benefits and for State and local benefits (8
                U.S.C. 1611(a), 1621(a)).
                The lack of accurate information about the total
                citizen population makes it difficult to plan for
                annual expenditures on certain benefits programs. And
                the lack of accurate and complete data concerning the
                alien population makes it extremely difficult to
                evaluate the potential effects of proposals to alter
                the eligibility rules for public benefits.
                Third, data identifying citizens will help the Federal
                Government generate a more reliable count of the
                unauthorized alien population in the country. Data
                tabulating both the overall population and the citizen
                population could be combined with records of aliens
                lawfully present in the country to generate an estimate
                of the aggregate number of aliens unlawfully present in
                each State. Currently, the Department of Homeland
                Security generates an annual estimate of the number of
                illegal aliens residing in the United States, but its
                usefulness is limited by the deficiencies of the
                citizenship data collected through the American
                Community Survey alone, which includes substantial
                margins of error because it is distributed to such a
                small percentage of the population.
                Academic researchers have also been unable to develop
                useful and reliable numbers of our illegal alien
                population using currently available data. A 2018 study
                by researchers at Yale University estimated that the
                illegal alien population totaled between 16.2 million
                and 29.5 million. Its modeling put the likely number at
                about double the conventional estimate. The fact is
                that we simply do not know how many citizens, non-
                citizens, and illegal aliens are living in the United
                Accurate and complete data on the illegal alien
                population would be useful for the Federal Government
                in evaluating many policy proposals. When Members of
                Congress propose various forms of protected status for
                classes of unauthorized immigrants, for example, the
                full implications of such proposals can be properly
                evaluated only with accurate information about the
                overall number of unauthorized aliens potentially at
                issue. Similarly, such information is needed to inform
                debate about legislative proposals to enhance
                enforcement of immigration laws and effectuate duly
                issued removal orders.
                The Federal Government's need for a more accurate count
                of illegal aliens in the country is only made more
                acute by the recent massive influx of illegal
                immigrants at our southern border. In Proclamation 9822
                of November 9, 2018 (Addressing Mass Migration Through
                the Southern Border of the United States), I explained
                that our immigration and asylum system remains in
                crisis as a consequence of the mass migration of aliens
                across our southern border. As a result of our broken
                asylum laws, hundreds of thousands of aliens who
                entered the country illegally have been released into
                the interior of the United States pending the outcome
                of their removal proceedings. But because of the
                massive backlog of cases, hearing dates are sometimes
                set years in the future and the adjudication process
                often takes years to complete. Aliens not in custody
                routinely fail to appear in court and, even if they do
                appear, fail to comply with removal orders. There are
                more than 1 million illegal aliens who have been issued
                final removal orders from immigration judges and yet
                remain at-large in the United States.
                Efforts to find solutions that address the immense
                number of unauthorized aliens living in our country
                should start with accurate information that allows us
                to understand the true scope of the problem.
                Fourth, it may be open to States to design State and
                local legislative districts based on the population of
                voter-eligible citizens. In Evenwel v. Abbott, 136 S.
                Ct. 1120 (2016), the Supreme Court left open the
                question whether ``States may draw districts to
                equalize voter-eligible population rather than
[[Page 33824]]
                total population.'' Some States, such as Texas, have
                argued that ``jurisdictions may, consistent with the
                Equal Protection Clause, design districts using any
                population baseline--including total population and
                voter-eligible population--so long as the choice is
                rational and not invidiously discriminatory''. Some
                courts, based on Supreme Court precedent, have agreed
                that State districting plans may exclude individuals
                who are ineligible to vote. Whether that approach is
                permissible will be resolved when a State actually
                proposes a districting plan based on the voter-eligible
                population. But because eligibility to vote depends in
                part on citizenship, States could more effectively
                exercise this option with a more accurate and complete
                count of the citizen population.
                The Department has said that if the officers or public
                bodies having initial responsibility for the
                legislative districting in each State indicate a need
                for tabulations of citizenship data, the Census Bureau
                will make a design change to make such information
                available. I understand that some State officials are
                interested in such data for districting purposes. This
                order will assist the Department in securing the most
                accurate and complete citizenship data so that it can
                respond to such requests from the States.
                To be clear, generating accurate data concerning the
                total number of citizens, non-citizens, and illegal
                aliens in the country has nothing to do with enforcing
                immigration laws against particular individuals. It is
                important, instead, for making broad policy
                determinations. Information obtained by the Department
                in connection with the census through requests for
                administrative records under 13 U.S.C. 6 shall be used
                solely to produce statistics and is subject to
                confidentiality protections under Title 13 of the
                United States Code. Information subject to
                confidentiality protections under Title 13 may not, and
                shall not, be used to bring immigration enforcement
                actions against particular individuals. Under my
                Administration, the data confidentiality protections in
                Title 13 shall be fully respected.
                Sec. 2. Policy. It is the policy of the United States
                to develop complete and accurate data on the number of
                citizens, non-citizens, and illegal aliens in the
                country. Such data is necessary to understand the
                effects of immigration on the country, and to inform
                policymakers in setting and evaluating immigration
                policies and laws, including evaluating proposals to
                address the current crisis in illegal immigration.
                Sec. 3. Assistance to the Department of Commerce and
                Maximizing Citizenship Data. (a) All agencies shall
                promptly provide the Department the maximum assistance
                permissible, consistent with law, in determining the
                number of citizens, non-citizens, and illegal aliens in
                the country, including by providing any access that the
                Department may request to administrative records that
                may be useful in accomplishing that objective. In
                particular, the following agencies shall examine
                relevant legal authorities and, to the maximum extent
                consistent with law, provide access to the following
(i) Department of Homeland Security, United States Citizenship and
Immigration Services--National-level file of Lawful Permanent Residents,
(ii) Department of Homeland Security, Immigration and Customs Enforcement--
F1 & M1 Nonimmigrant Visas;
(iii) Department of Homeland Security--National-level file of Customs and
Border Arrival/Departure transaction data;
(iv) Department of Homeland Security and Department of State, Worldwide
Refugee and Asylum Processing System--Refugee and Asylum visas;
(v) Department of State--National-level passport application data;
(vi) Social Security Administration--Master Beneficiary Records; and
(vii) Department of Health and Human Services--CMS Medicaid and CHIP
Information System.
[[Page 33825]]
                    (b) The Secretary of Commerce shall instruct the
                Director of the Census Bureau to establish an
                interagency working group to coordinate efforts,
                consistent with law, to maximize the availability of
                administrative records in connection with the census,
                with the goal of obtaining administrative records that
                can help establish citizenship status for 100 percent
                of the population. The Director of the Census Bureau
                shall chair the working group, and the head of each
                agency shall designate a representative to the working
                group upon request from the working group chair.
                    (c) To ensure that the Federal Government continues
                to collect the most accurate information available
                concerning citizenship going forward, the Secretary of
                Commerce shall consider initiating any administrative
                process necessary to include a citizenship question on
                the 2030 decennial census and to consider any
                regulatory changes necessary to ensure that citizenship
                data is collected in any other surveys and data-
                gathering efforts conducted by the Census Bureau,
                including the American Community Survey. The Secretary
                of Commerce shall also consider expanding the
                distribution of the American Community Survey, which
                currently reaches approximately 2.5 percent of
                households, to secure better citizenship data.
                    (d) The Department shall strengthen its efforts,
                consistent with law, to gain access to relevant State
                administrative records.
                Sec. 4. General Provisions. (a) Nothing in this order
                shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or
the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
                    (b) This order shall be implemented consistent with
                applicable law and subject to the availability of
                    (c) This order is not intended to, and does not,
                create any right or benefit, substantive or procedural,
                enforceable at law or in equity by any party against
                the United States, its departments, agencies, or
                entities, its officers, employees, or agents, or any
                other person.

                    (Presidential Sig.)
                THE WHITE HOUSE,
                    July 11, 2019.
[FR Doc. 2019-15222
Filed 7-15-19; 8:45 am]
Billing code 3295-F9-P