The twists and turns in Trump’s executive order on immigrants and the census

“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.”

— President Trump, in a memorandum for Commerce Secretary Wilbur Ross on congressional apportionment, July 21, 2020

This artfully crafted statement serves as the basis for Trump’s executive order to remove millions of undocumented immigrants from the population data Congress uses to apportion House seats among the states.

But it gives a warped view of history to justify an enormous shift in political power. If carried out, the president’s order is likely to reduce seats in Congress for mostly Democratic states.

The Facts

The Constitution requires a nationwide population count every 10 years. Originally, that meant counting “the whole Number of free Persons,” adding “three fifths” of a person for each slave and “excluding Indians not taxed.”