Coalition of States, Cities, and Counties Oppose President Trump’s Newest Ploy to Keep Undocumented Immigrants Out of Apportionment

PHILADELPHIA – The City of Philadelphia today joined a large coalition of states, cities, and counties in filing a lawsuit against President Donald Trump for attempting once again, illegally leave millions out of the apportionment base that establishes the number of members in the House of Representatives that each state receives.

The lawsuit, led by New York Attorney General Letitia James, seeks to stop the Trump Administration from politicizing the census and violating basic constitutional commands, and instead aims to ensure the administration counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution unambiguously requires.

“I am pleased that Philadelphia can join so many other cities and states in seeking to halt this latest outrageous effort by the President to divide the country,” said Mayor Kenney. “The outcome of the 2020 Census is far too important to allow such a move to go unchallenged. A nation founded by immigrants needs to count its immigrants. They cannot simply be erased through a bureaucratic sleight-of-hand by a White House intent on subverting the Constitution. Our country’s founders declared—and 200 years of practice and judicial and administrative precedents have affirmed—that there are no exceptions in the Constitution regarding immigration status when it comes to the census. The census counts every person living in the United States of America.”

The suit was filed against President Trump, the U.S. Department of Commerce, the U.S. Census Bureau, Commerce Secretary Wilbur Ross, and Census Director Steven Dillingham. Joining Philadelphia in the filing are 21 attorneys general, eight other cities, four counties, and one combined city and county. The coalition argues that apportionment based on a population count that unlawfully excludes undocumented immigrants will:

  • Lead to the loss of congressional seats and presidential electors in the Electoral College.
  • Skew the division of electoral districts within jurisdictions by impairing state and local redistricting efforts that rely on the census count.
  • Reduce federal funds to state and local jurisdictions by deterring immigrants from responding to the decennial census that is currently underway.
  • Degrade the quality of census data that states and local jurisdictions rely on to perform critical governmental functions.

“We are standing up for our undocumented residents and fighting back through the legal system against this unconstitutional move, carefully planned to suppress census participation, and create fear among immigrant communities. Please remember: you count in Philadelphia. We will not allow this administration to erase you or our undocumented immigrant communities,” said Stephanie Reid, Executive Director of Philly Counts 2020.

The coalition also makes clear in today’s lawsuit that public statements and actions by President Trump and his administration have established that the rationale for excluding undocumented immigrants from the apportionment base has always been motivated by racial animus against immigrants of color, and a desire to curb the political power of immigrants and communities of color.

According to the coalition, the president’s memorandum explicitly states that the Trump Administration’s goal is to reduce political influence and congressional representation to jurisdictions with a larger share of undocumented immigrants. Further, the president’s announcement is clearly intended to promote fear and deter participation in the census by immigrants and their families, as it comes just weeks before enumerators are scheduled to go into the field to encourage households to respond to the census.

“This was yet another attempt to cause fear and confusion within our communities. Philadelphia protects and defends its immigrant community, and we do not tolerate xenophobic policies from the Trump administration. This legal challenge is proof of our commitment to our undocumented residents. We will continue to be a welcoming city that supports all our immigrant residents—documented or undocumented—and their families,” said Amy Eusebio, Director of the Office of Immigrant Affairs.

The coalition specifically argues that the exclusion of undocumented immigrants from the apportionment base violates the Fourteenth Amendment; the Due Process Clause of the Fifth Amendment; the Tenth Amendment; and the Administrative Procedure Act, by being both contrary to law and arbitrary and capricious. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent. Attorney General James and the coalition ask the court to force the president and his administration to hold to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants—or any other person—from the apportionment base.

Copies of the lawsuit are available on request.