Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census
| Published date | 23 July 2020 |
| Citation | 85 FR 44679 |
| Record Number | 2020-16216 |
| Section | Presidential Documents |
| Court | Executive Office Of The President |
Federal Register, Volume 85 Issue 142 (Thursday, July 23, 2020)
[Federal Register Volume 85, Number 142 (Thursday, July 23, 2020)]
[Presidential Documents]
[Pages 44679-44681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16216]
[[Page 44677]]
Vol. 85
Thursday,
No. 142
July 23, 2020
Part IV
The President
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Memorandum of July 21, 2020--Excluding Illegal Aliens From the
Apportionment Base Following the 2020 Census
Notice of July 22, 2020--Continuation of the National Emergency With
Respect to Transnational Criminal Organizations
Presidential Documents
Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 44679]]
Memorandum of July 21, 2020
Excluding Illegal Aliens From the Apportionment
Base Following the 2020 Census
Memorandum for the Secretary of Commerce
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. Background. In order to apportion
Representatives among the States, the Constitution
requires the enumeration of the population of the
United States every 10 years and grants the Congress
the power and discretion to direct the manner in which
this decennial census is conducted (U.S. Const. art. I,
sec. 2, cl. 3). The Congress has charged the Secretary
of Commerce (the Secretary) with directing the conduct
of the decennial census in such form and content as the
Secretary may determine (13 U.S.C. 141(a)). By the
direction of the Congress, the Secretary then transmits
to the President the report of his tabulation of total
population for the apportionment of Representatives in
the Congress (13 U.S.C. 141(b)). The President, by law,
makes the final determination regarding the ``whole
number of persons in each State,'' which determines the
number of Representatives to be apportioned to each
State, and transmits these determinations and
accompanying census data to the Congress (2 U.S.C.
2a(a)). The Congress has provided that it is ``the
President's personal transmittal of the report to
Congress'' that ``settles the apportionment'' of
Representatives among the States, and the President's
discretion to settle the apportionment is more than
``ceremonial or ministerial'' and is essential ``to the
integrity of the process'' (Franklin v. Massachusetts,
505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which
persons must be included in the apportionment base.
Although the Constitution requires the ``persons in
each State, excluding Indians not taxed,'' to be
enumerated in the census, that requirement has never
been understood to include in the apportionment base
every individual physically present within a State's
boundaries at the time of the census. Instead, the term
``persons in each State'' has been interpreted to mean
that only the ``inhabitants'' of each State should be
included. Determining which persons should be
considered ``inhabitants'' for the purpose of
apportionment requires the exercise of judgment. For
example, aliens who are only temporarily in the United
States, such as for business or tourism, and certain
foreign diplomatic personnel are ``persons'' who have
been excluded from the apportionment base in past
censuses. Conversely, the Constitution also has never
been understood to exclude every person who is not
physically ``in'' a State at the time of the census.
For example, overseas Federal personnel have, at
various times, been included in and excluded from the
populations of the States in which they maintained
their homes of record. The discretion delegated to the
executive branch to determine who qualifies as an
``inhabitant'' includes authority to exclude from the
apportionment base aliens who are not in a lawful
immigration status.
[[Page 44680]]
In Executive Order 13880 of July 11, 2019 (Collecting
Information About Citizenship Status in Connection With
the Decennial Census), I instructed executive
departments and agencies to share information with the
Department of Commerce, to the extent permissible and
consistent with law, to allow the Secretary to obtain
accurate data on the number of citizens, non-citizens,
and illegal aliens in the country. As the Attorney
General and I explained at the time that order was
signed, data on illegal aliens could be relevant for
the purpose of conducting the apportionment, and we
intended to examine that issue.
Sec. 2. Policy. For the purpose of the reapportionment
of Representatives following the 2020 census, it is the
policy of the United States to exclude from the
apportionment base aliens who are not in a lawful
immigration status under the Immigration and
Nationality Act, as amended (8 U.S.C. 1101 et seq.), to
the maximum extent feasible and consistent with the
discretion delegated to the executive branch. Excluding
these illegal aliens from the apportionment base is
more consonant with the principles of representative
democracy underpinning our system of Government.
Affording congressional representation, and therefore
formal political influence, to States on account of the
presence within their borders of aliens who have not
followed the steps to secure a lawful immigration
status under our laws undermines those principles. Many
of these aliens entered the country illegally in the
first place. Increasing congressional representation
based on the presence of aliens who are not in a lawful
immigration status would also create perverse
incentives encouraging violations of Federal law.
States adopting policies that encourage illegal aliens
to enter this country and that hobble Federal efforts
to enforce the immigration laws passed by the Congress
should not be rewarded with greater representation in
the House of Representatives. Current estimates suggest
that one State is home to more than 2.2 million illegal
aliens, constituting more than 6 percent of the State's
entire population. Including these illegal aliens in
the population of the State for the purpose of
apportionment could result in the allocation of two or
three more congressional seats than would otherwise be
allocated.
I have accordingly determined that respect for the law
and protection of the integrity of the democratic
process warrant the exclusion of illegal aliens from
the apportionment base, to the extent feasible and to
the maximum extent of the President's discretion under
the law.
Sec. 3. Excluding Illegal Aliens from the Apportionment
Base. In preparing his report to the President under
section 141(b) of title 13, United States Code, the
Secretary shall take all appropriate action, consistent
with the Constitution and other applicable law, to
provide information permitting the President, to the
extent practicable, to exercise the President's
discretion to carry out the policy set forth in section
2 of this memorandum. The Secretary shall also include
in that report information tabulated according to the
methodology set forth in Final 2020 Census Residence
Criteria and Residence Situations, 83 FR 5525 (Feb. 8,
2018).
Sec. 4. General Provisions. (a) Nothing in this
memorandum 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 memorandum shall be implemented consistent
with applicable law and subject to the availability of
appropriations.
[[Page 44681]]
(c) This memorandum 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,
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[FR Doc. 2020-16216
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