Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 44679-44681 [2020-16216]

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• Executive Office of the President

[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,

                    Washington, July 21, 2020

[FR Doc. 2020-16216
Filed 7-22-20; 2:00 pm]
Billing code 3510-07-P