AG James Leads Coalition of States, Cities, and Counties in Opposing Xenophobic Policy
That Would Exclude Undocumented Immigrants from Congressional Apportionment
AG James Previously Won Supreme Court Case
That Prevented Addition of Citizenship Question on Census
New York and Other Immigrant-Rich States Stand to Lose Representation in
Congress and in Electoral College if Trump Administration Policy is Implemented
New York – Before the United States Supreme Court, New York Attorney General Letitia James will today lead a large coalition of states, cities, and counties in arguing against President Donald Trump’s attempts, once again, to illegally leave millions of undocumented immigrants out of the apportionment base that establishes the number of members in the House of Representatives that each state receives. Despite numerous losses in its efforts to politicize the 2020 Decennial Census, the Trump Administration is seeking to again violate basic constitutional and statutory commands. Attorney General James will lead the coalition to argue that the administration must count the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution and the Census Act unambiguously require.
“President Trump’s illegal proclamation is the latest in a long list of anti-immigrant actions and statements he has made since the beginning of his first campaign,” said Attorney General James. “The U.S. Constitution and the Census Act are crystal clear — every person residing in the U.S. during the census, regardless of legal status, must be counted. And despite this lame-duck president’s repeated attempts to politicize the census and strip immigrant-rich states, like New York, of representation, the simple truth is that no one ceases to be a person because they lack documentation or ceases to live here because the president would prefer them to leave; that’s why we filed this lawsuit and numerous others like it before. We will continue to do whatever is necessary to stop the president from putting politics above the law.”
In July, Attorney General James led a coalition of states, cities, and counties in filing a lawsuit against President Trump, Secretary of Commerce Wilbur Ross, and others after they announced that they would leave millions of undocumented immigrants out of the apportionment base that follows the decennial census count. The lawsuit sought to stop the Trump Administration from violating the longstanding constitutional and statutory requirements to count the “whole number of persons” residing in each state for apportionment, without regard to immigration status. In August, Attorney General James filed a motion for summary judgment in the case, which was granted in September by a three-judge court that stated that the president’s plan to exclude undocumented immigrants from the apportionment base was unlawful.
In today’s argument, Attorney General James will argue that excluding undocumented immigrants from the apportionment base will lead to the loss of congressional seats and presidential electors in the electoral college, especially for immigrant-rich states, like New York, as well as degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions. Additionally, excluding immigrants can reduce resources to state and local jurisdictions.
The U.S. Constitution and Census Act clearly state that, for purposes of apportioning members of the House of Representatives among the states, every person residing in the U.S. on Census Day — April 1 this past year — must be counted. But, in July, President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base — the first time such action has been taken in the nation’s history.
Specifically, Article I Section 2 of the U.S. Constitution says representatives shall be apportioned among states according to their respective numbers. The major exception to this rule was the Three-Fifths Compromise, which was instituted to resolve disputes over how and whether slaves would be included in a state’s total count. The compromise counted each slave as only three-fifths of any other person, specifically limiting the number of representatives and electoral-college votes — and essentially the power — of states with large slave populations.
In 1868, after the Civil War ended and when slaves were finally free, the Fourteenth Amendment was adopted to provide equal protection under the law to all persons, including former slaves, stating that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” The framers deliberately chose the phrase “whole number of persons” to refer to all persons living in each state — including the entire immigrant population.
When the framers made this change, they could have chosen to add language that would allow undocumented immigrants to be left out of the apportionment base, but they didn’t. Since that time, more than 150 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status. Additionally, Congress has reinforced that requirement by providing that the census must tabulate the “total population” by states, and the apportionment should be based on the “whole number of persons” in each state as determined by the census.
Notably, until the president’s announcement in July, even other members of his administration acknowledged that apportionment must be based on all persons. The person tasked with overseeing the census — Secretary Ross — testified under oath during a congressional committee hearing last year that “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted” — making no mention of an individual’s legal status.
Attorney General James and the coalition will specifically argue that the exclusion of undocumented immigrants from the apportionment base violates Article I Section 2 of the U.S. Constitution, the Fourteenth Amendment, and the Census Act. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent. Attorney General James and the coalition will ask the Supreme Court to require the president and his administration to adhere to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants from the apportionment base, just as the lower court did.
Today’s court fight is just the latest in a long list of actions Attorney General James has taken to protect the integrity of the 2020 Decennial Census. In 2018, the Office of the Attorney General filed a lawsuit against the Trump Administration, challenging its efforts to add a citizenship question to the census. Last June the U.S. Supreme Court ruled in favor of New York by rejecting the effort to add the question. In August of last year, Attorney General James moved to intervene in a separate census case in Alabama where the federal government were defendants, in an effort to ensure the case is properly presented and that every resident in America — irrespective of citizenship status — is counted in the census. That case is still pending. Additionally, in August, Attorney General James led a large coalition in supporting legal action against the Trump Administration’s efforts to impair the 2020 Decennial Census by reducing — by an entire month, from October 31 to September 30 — the time in which self-response questionnaires would be accepted and door-to-door follow-ups by census enumerators would take place. After multiple court battles, the coalition was able to help extend the time to respond to the census by more than two weeks.
Members of New York’s congressional delegation today also offered their support of Attorney General James’ fight to protect the integrity of the census against the Trump Administration’s latest attack. “Once again, President Trump is trying to silence diverse voices from being counted in the census by excluding millions of immigrants from the apportionment base, which determines the number of U.S. Representatives for each state,” said U.S. Representative Jerrold Nadler (NY-10). “This is a clear violation of the Constitution’s guarantee of equal representation. The Supreme Court must reject yet another attempt by the Trump Administration to manipulate election outcomes and reduce the voting power of diverse, immigrant-rich communities, including those within New York.”
“Donald Trump has made clear, through his anti-immigrant agenda, of his administration’s desire to diminish the role of immigrants in our communities,” said U.S. Representative Nydia Velázquez (NY-07). “This latest attempt is blatantly unconstitutional as our Constitution demands that the census count every person. Immigrants are our family members, neighbors, co-workers, and friends, and the census must reflect their contributions to our communities by ensuring every person, regardless of legal status, is counted.”
“The Trump Administration is once again attempting to arbitrarily omit immigrants from the census count, which is unconstitutional and nakedly political,” said U.S. Representative Gregory Meeks (NY-05). “I thank Attorney General James for once again being vigilant in challenging the administration’s unlawful attempts to subvert the census.”
“The census is a pillar of our democracy, enshrined by the founders to ensure that everyone in America, regardless of immigration status, is counted and represented in Congress,” said U.S. Representative Hakeem Jeffries (NY-08). “From the start of the 2020 Decennial Census, the Trump Administration has deliberately tried to undermine the process required for a fair and complete count. The attempted exclusion of undocumented immigrants from congressional apportionment only further proves that the Trump Administration has tried everything to politicize the census to carry out their cruel and xenophobic policies. I am proud that Brooklyn’s own Attorney General Letitia James will bring the fight to the lame-duck Trump Administration and advocate on behalf of New Yorkers and everyone who makes this nation a gorgeous mosaic.”
Joining Attorney General James in today’s case are the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia. The attorneys general are joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; the city and county of San Francisco, CA; Monterey County in California; Howard County in Maryland; Cameron, El Paso, and Hidalgo Counties in Texas and the bipartisan U.S. Conference of Mayors.
Today’s argument was presented by Solicitor General Barbara D. Underwood, who was assisted by Deputy Solicitor General Steven C. Wu, Senior Assistant Solicitor General Judith N. Vale, and Special Counsel Eric Haren — all of the Division for Appeals and Opinions. This case was handled by the individuals named above, as well as Chief Counsel for Federal Initiatives Matthew Colangelo, Special Counsel Morenike Fajana, and Assistant Attorney General Fiona Kaye — all of the Executive Division; as well as Civil Rights Deputy Bureau Chief Elena Goldstein, of the Division for Social Justice. The Executive Division and the Division for Social Justice are overseen by First Deputy Attorney General Jennifer Levy.