Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census, 7015-7017 [2021-01755]

Agencies

• Executive Office of the President

[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]
[Presidential Documents]
[Pages 7015-7017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01755]




                        Presidential Documents 



Federal Register / Vol. 86 , No. 14 / Monday, January 25, 2021 / 
Presidential Documents

[[Page 7015]]


                Executive Order 13986 of January 20, 2021

                
Ensuring a Lawful and Accurate Enumeration and 
                Apportionment Pursuant to 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:

                 Section 1. Background. We have long guaranteed all of 
                the Nation's inhabitants representation in the House of 
                Representatives. This tradition is foundational to our 
                representative democracy, for our elected 
                representatives have a responsibility to represent the 
                interests of all people residing in the United States 
                and affected by our laws. This tradition also respects 
                the dignity and humanity of every person. Accordingly, 
                the executive branch has always determined the 
                population of each State, for purposes of congressional 
                representation, without regard to whether its residents 
                are in lawful immigration status.

                The census and apportionment processes are enshrined in 
                the Constitution. The Fourteenth Amendment apportions 
                seats in the House of Representatives ``among the 
                several States according to their respective numbers, 
                counting the whole number of persons in each State.'' 
                (U.S. Const. amend. XIV, sec. 2.) Article I, in turn, 
                provides that, in order to determine those numbers, an 
                ``actual Enumeration'' of the population of the United 
                States must be conducted every 10 years. (U.S. Const. 
                art. I, sec. 2, cl. 3.) The Congress has assigned 
                responsibility for conducting the decennial census to 
                the Secretary of Commerce (Secretary). (13 U.S.C. 
                141(a).)

                Once the Secretary, through the Director of the U.S. 
                Census Bureau, takes the count, the President must 
                carry out the apportionment of Representatives among 
                the States. The Secretary prepares the ``tabulation of 
                total population by States . . . as required for the 
                apportionment of Representatives,'' and reports that 
                tabulation to the President. (13 U.S.C. 141(b).) The 
                President then sends a statement to the Congress 
                showing ``the whole number of persons in each State,'' 
                as ascertained under the census, and ``the number of 
                Representatives to which each State would be entitled 
                under'' the equal proportions apportionment method. (2 
                U.S.C. 2a(a).) The Clerk of the House of 
                Representatives then transmits to each State a 
                certification of the number of seats that the State 
                receives under that apportionment. (2 U.S.C. 2a(b).) 
                Finally, within 1 year of the decennial census date, 
                the Secretary must also report to the Governor and 
                officers or public bodies having responsibility for 
                legislative apportionment or districting of each State 
                the population tabulations to be used for apportioning 
                districts within that State. (13 U.S.C. 141(c).)

                At no point since our Nation's Founding has a person's 
                immigration status alone served as a basis for 
                excluding that person from the total population count 
                used in apportionment. Before the Civil War and the 
                abolition of slavery, the Constitution did not give 
                equal weight to every person counted under the census. 
                (U.S. Const. art. 1, sec. 2.) In accord with 
                constitutional and statutory requirements, however, 
                every apportionment since ratification of the 
                Fourteenth Amendment has calculated each State's share 
                of Representatives based on ``the whole number of 
                persons in each State,'' excluding only ``Indians not 
                taxed''--an express constitutional exception that no 
                longer has legal or practical effect. (U.S. Const. 
                amend. XIV, sec. 2; 2 U.S.C. 2a(a).) The term ``persons 
                in each State'' has always been understood to include 
                every person whose usual place of residence was in that 
                State as of the

[[Page 7016]]

                designated census date. (See, e.g., Act of Mar. 1, 
                1790, ch. 2, secs. 1, 5, 1 Stat. 101, 103; Franklin v. 
                Massachusetts, 505 U.S. 788, 804 (1992).) This unbroken 
                practice has ensured that ``the basis of representation 
                in the House'' is ``every individual of the community 
                at large.'' (Evenwel v. Abbott, 136 S. Ct. 1120, 1127 
                (2016) (emphasis and quotation marks omitted).) And it 
                reflects a sound policy judgment that the apportionment 
                base be both clear and insulated against manipulation 
                designed to affect the balance of power among the 
                States.

                During the 2020 Census, the President announced a 
                policy that broke from this long tradition. It aimed to 
                produce a different apportionment base--one that would, 
                to the maximum extent feasible, exclude persons who are 
                not in a lawful immigration status. See Presidential 
                Memorandum of July 21, 2020 (Excluding Illegal Aliens 
                From the Apportionment Base Following the 2020 Census). 
                This policy conflicted with the principle of equal 
                representation enshrined in our Constitution, census 
                statutes, and historical tradition. The policy further 
                required the Census Bureau to inappropriately rely on 
                records related to immigration status that were likely 
                to be incomplete and inaccurate.

                 Sec. 2. Policy. Both the Fourteenth Amendment of the 
                United States Constitution and section 2a(a) of title 
                2, United States Code, require that the apportionment 
                base of each State, for the purpose of the 
                reapportionment of Representatives following the 
                decennial census, include all persons whose usual place 
                of residence was in that State as of the designated 
                census date, regardless of their immigration status. 
                These laws, affirmed by the executive branch's 
                longstanding historical practice, do not permit the 
                exclusion of inhabitants of the United States from the 
                apportionment base solely on the ground that they lack 
                a lawful immigration status. Reflecting this legal 
                background, and the values of equal representation and 
                respect that the Constitution and laws embody, it is 
                the policy of the United States that reapportionment 
                shall be based on the total number of persons residing 
                in the several States, without regard for immigration 
                status. It is likewise essential that the census count 
                be accurate and based on reliable and high-quality 
                data.

                 Sec. 3. Ensuring that the Apportionment Base and 
                State-Level Tabulations Include All Inhabitants of Each 
                State. In preparing the report to the President 
                required under section 141(b) of title 13, United 
                States Code, the Secretary shall report the tabulation 
                of total population by State that reflects the whole 
                number of persons whose usual residence was in each 
                State as of the designated census date in section 
                141(a) of title 13, United States Code, without regard 
                to immigration status. In addition, the Secretary shall 
                use tabulations of population reflecting the whole 
                number of persons whose usual residence was in each 
                State as of the census date, without regard to 
                immigration status, in reports provided to the Governor 
                and officers or public bodies having responsibility for 
                legislative apportionment or districting of each State 
                under section 141(c) of title 13, United States Code.

                 Sec. 4. Data Quality. The Secretary shall take all 
                necessary steps, consistent with law, to ensure that 
                the total population information presented to the 
                President and to the States is accurate and complies 
                with all applicable laws.

                 Sec. 5. Revocation. Executive Order 13880 of July 11, 
                2019 (Collecting Information About Citizenship Status 
                in Connection With the Decennial Census), and the 
                Presidential Memorandum of July 21, 2020 (Excluding 
                Illegal Aliens From the Apportionment Base Following 
                the 2020 Census), are hereby revoked.

                 Sec. 6. 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.

[[Page 7017]]

                    (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,

                    January 20, 2021.

[FR Doc. 2021-01755
Filed 1-22-21; 11:15 am]
Billing code 3295-F1-P