President Trump this week issued a directive that seeks to prevent some immigrants from being included in the 2020 census for purposes of congressional apportionment next year. 

The announcement drew immediate criticism from legal experts who say the directive is plainly unlawful, from advocates who say it will undermine a census effort already beset by the coronavirus pandemic, and from civil rights groups who threatened immediate legal action. 

“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…to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” Trump’s memo stated. 

But not so fast, countered Vanita Gupta, President and CEO of the Leadership Conference on Civil and Human Rights. She called the directive “xenophobic” and “unconstitutional.” 

“Undocumented workers live, work, and go to school in every state and they are part of our communities,” she said in a statement. “Trump and Stephen Miller are trying to scare people who are undocumented from participating in the census so their communities miss out on the resources and political power they deserve. Trump is attempting to upend the $16 billion, half-finished census, leaving states with inaccurate numbers that will deprive communities of federal assistance to recover from the pandemic.” 

And Thomas Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund, said in a statement that Trump’s directive “will end up in the dustbin of history as yet another exemplar of Donald Trump’s disturbing embrace of white nationalism…MALDEF will be in court to stop this latest example of blatantly unconstitutional executive action by a failed presidency.” 

“Over six million children live in households with at least one undocumented immigrant adult who may be deterred by this memorandum from completing the Census,” according to a statement from the Partnership for America’s Children. Young children are already undercounted, and if families including immigrants are deterred from responding to the Census, the inaccurate count will result in many communities not getting their fair share of resources for schools and other services. 

Dale Ho, a lawyer for the American Civil Liberties Union, told the Washington Post Trump’s “latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.” 

But it was not just advocacy groups who questioned the directive’s legality. A number of academic legal experts jumped into the fray, noting that when Section 2 of the 14th Amendment to the U.S. Constitutions requires a count of all “persons,” it means just that. 

Thomas Wolf, Senior Counsel and Spitzer Fellow at the Brennan Center for Justice at New York University’s School of Law, told the Post that the directive is “patently unconstitutional.” 

“Persons means people,” he said. “Everyone must be counted…regardless of race or ethnicity or citizen status.” 

He added that the directive asks “every American to disregard the plain text of the Constitution and ignore what their eyes tell them about what the law and the American Constitution is about.” 

And some members of Congress are taking quick action to counter the President’s memo . 

Rep. Carolyn Maloney (D-NY), Chairwoman of the Committee on Oversight and Reform, quickly announced that her committee will hold an emergency hearing on the census next week. 

“Taking this step right in the middle of the ongoing census is particularly egregious and sinister because it appears purposefully designed to depress the count, deter people from filling out their forms, and corrupt the democratic processes on which our nation is founded,” Maloney said in a statement co-signed by Rep. Jamie B. Raskin (D-Md.), chairman of the Subcommittee on Civil Rights and Civil Liberties. “We fought and defeated the President’s last attempt to scrawl his anti-immigrant graffiti all over the census, and we’ll stop him again now.” 

Meanwhile, there are related fights brewing in Congress and in the White House – fights that are made all the more complicated because the future of this year’s census increasingly is ensnared in discussions over what the next COVID-19 aid package will look like. 

These fights have to do with both timing and funding. 

Back in April, the Trump Administration asked Congress to extend the deadline for reporting the census data by four months, beyond the original Dec. 31 deadline. The extension was necessary because the pandemic shut down many census activities and delayed the work of census takers who go door to door getting information from the people who have not yet responded on their own. However, should President Trump lose his re-election bid, the data would not be reported until after a new administration assumes office. 

Now it is anticipated that the Trump Administration will withdraw its request, and instead will ask Senate Majority Leader Mitch McConnell to seek $1 billion in emergency funding, as part of the COVID-19 legislation, to rush a count through to completion by the original deadline. 

The House already has approved the four-month extension, along with an additional $400 million in funding for the census, as part of its HEROES Act. It is unclear what the Senate will do, both in terms of adding funding for the census as well as approving the four-month extension. 

For their part, advocates are insisting that any final COVID-19 package must include the four-month delay. And, citing comments from Census Bureau officials, they note that even if the Senate grants Trump’s request for $1 billion in emergency census aid, a full, fair and accurate count and subsequent reporting cannot happen by Dec. 31.  

So far, fewer than two-thirds of Americans have responded to the census on their own. That is similar to response rates from previous years before the census takers go out seeking more replies.  This year, the pandemic has caused unavoidable delays that will make an accurate count impossible without the extension. Commented CHN’s Executive Director Deborah Weinstein, “It is disturbingly clear that an accurate count is not what the Trump Administration is seeking.”