Collecting Information About Citizenship Status in Connection With the Decennial Census, 33821-33825 [2019-15222]

Agencies

• Executive Office of the President

[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 [www.gpo.gov]
[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 
                States.

                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 
                records:

(i) Department of Homeland Security, United States Citizenship and 
Immigration Services--National-level file of Lawful Permanent Residents, 
Naturalizations;

(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 
                appropriations.
                    (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