President Trump’s attempt to demand the Census Bureau produce a 2020 count that doesn’t include illegal immigrants is illegal, a panel of federal judges ruled Thursday, delivering another blow to the administration’s attempts to shape the census.
The judges, acting unanimously, flatly declared Mr. Trump’s July 21 directive unlawful, saying they hoped such a firm statement would also help alleviate fears that illegal immigrants and others might decline to respond to the census.
Mr. Trump had wanted the census to still produce its normal count of all residents, but also to produce another count excluding illegal immigrants. That count, he said, should be used to apportion seats in the House of Representatives.
But the judges said that violates laws Congress has written making clear the full count should be used for apportionment.
“The Constitution gives to Congress the authority to regulate the census and to reapportion the House,” they wrote.
It’s the second setback for Mr. Trump, who last year saw his bid to add a citizenship question to the 2020 census crumble because, the Supreme Court ruled, he didn’t check all the right procedural boxes.
“When it comes to matters of the Census, the scoreboard reads: immigrant advocates 2, Trump 0,” said Steve Choi, executive director of the New York Immigration Coalition, one of the groups that sued to stop both census-shaping attempts.
Experts had doubted the Census Bureau would be able to follow through on Mr. Trump’s directive anyway.
Figuring out how to exclude illegal immigrants is tricky, since it’s not clear who they all are, and statistical methods are subject to a massive margin of error.
But some conservatives had long wanted to see an attempt made.
They argue that allowing those in the country illegally to be used as part of the count doling out House seats gives more political power to illegal immigrant-friendly states, at the expense of others.
The Center for Immigration Studies, for example, calculates that three seats would shift depending on whether the estimated 11 million illegal immigrants are excluded. If counted, California, Texas and New York would end up with the seats. If excluded, those seats would go to Ohio, Alabama and Minnesota.
Under the law, court challenges dealing with this issue automatically go to a three-judge panel.
In this case two of the judges were appointed by President George W. Bush and one by President Obama. They issued a joint opinion signed by all three.
It bans the Commerce secretary, who oversees the census, from providing Mr. Trump anything but the full count. That ensures that’s the only count he can provide to Congress for apportionment.
The panel did say the Census Bureau can still study if and how it would go about trying to produce the second count.
That means that if the Supreme Court overrules them, there is enough time for the bureau to meet Mr. Trump’s demand, the judges said.
