Executive Orders, the Census, and Apportionment
The executive branch decides how census data is used to apportion seats in the House of Representatives. The two most recent presidential administrations have staked out very different approaches to apportionment—and, as a result, the census—in two opposing executive orders.
Donald Trump’s Executive Order
President Donald Trump’s executive order is titled Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census. It is based on the Constitution and excludes persons who were not U.S. citizens or legal residents from being included in the reapportionment of representatives following the 2020 census. It states in part,
The President, by law, makes the final determination regarding the “whole number of persons in each State,” which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). . . . 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch.
Joe Biden’s Executive Order
President Joe Biden’s executive order is titled Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census. Section 1 begins,
We have long guaranteed all of the Nation’s inhabitants representation in the House of Representatives. This tradition is foundational to our representative democracy, for our elected representatives have a responsibility to represent the interests of all people residing in the United States and affected by our laws. This tradition also respects the dignity and humanity of every person. Accordingly, the executive branch has always determined the population of each State, for purposes of congressional representation, without regard to whether its residents are in lawful immigration status.
President Biden’s executive order says there is a long tradition of accounting for persons who are not citizens during the census, dating back to the Civil War and abolition of slavery. This executive order is based on the 14th Amendment to the U.S. Constitution and Section 2a(a) of Title 2, United States Code. This executive order also revoked Executive Order 13880 of July 11, 2019 (Collecting Information about Citizenship Status in Connection with the Decennial Census), and the above-mentioned presidential memorandum of July 21, 2020 (Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census).
It is unclear at this time whether the Democratic candidate, Vice President Kamala Harris, will change the party’s stance on apportionment-related issues if she were to win the election. It may be safe to assume that the party will maintain its opinion on these issues in order to preserve some of President Biden’s political platforms. It seems unlikely that Harris would change the current executive order relating to apportionment should the Democrats win the 2024 presidential election.
Apportionment Litigation Based on Executive Orders
Neither of these executive orders is safe from litigation. Two cases being litigated in 2024 deal with presidential executive orders relating to apportionment and reapportion issues: Common Cause Florida v. Byrd and Citizens for Constitutional Integrity v. Census Bureau.
Common Cause Florida v. Byrd was filed in Florida by Common Cause Florida, Fair Districts Now, the Florida State Conference of the NAACP, and individual voters. The case alleges that “the Florida Legislature and Governor DeSantis engaged in intentional racial discrimination in violation of the 14th and 15th Amendments of the U.S. Constitution in crafting the state’s current congressional map.” After a bench trial held in September and October 2023, the U.S. District Court for the Northern District of Florida found there was not a racially discriminatory purpose in enacting the redistricting plan.
Citizens for Constitutional Integrity v. Census Bureau is a federal lawsuit filed
against the U.S. Census Bureau, its Director, and the Secretary of the Department of Commerce challenging the Bureau’s apportionment of congressional representatives following the 2020 Decennial Census as violating the 14th Amendment and the Administrative Procedure Act (the “APA”). . . . [The plaintiffs] are seeking a judicial declaration that the defendants violated the 14th Amendment and the APA, and that the congressional reapportionment report based off the 2020 Census is void, an order vacating and remanding the report to the Census Bureau, and an injunction mandating the Bureau reapportion and reissue the report in accordance with the 14th Amendment’s requirements using the Census Bureau’s data of citizens and voter registration rates.
The case was dismissed for lack of standing on April 18, 2023; however, it is still on appeal in the U.S. Court of Appeals for the District of Columbia Circuit (case number 23-5140).
While apportionment may be an issue constantly ripe for litigation, plaintiffs in these cases must meet their constitutional burden to change the proposed apportionment plan.
A Choice for Voters
During the 2024 election season, it is important to note that the way census data is interpreted may not ultimately be dictated by either candidate on the ballot. The upcoming presidential term will end on January 20, 2029, but census data will not be calculated until 2030. Although the next president may issue another executive order relating to apportionment, it may not be controlling on how the 2030 census is decided. Litigation will likely continue to arise as executive orders are implemented. However, we may not know how census data will be used to apportion representatives until the presidential term that starts in 2029.
As a result, the question of who should be included in census-based reapportionment will factor into the political discussions surrounding both of the next two election cycles. In 2024, two candidates with different viewpoints on this issue will be on the ballot. One candidate holds the position that only U.S. citizens and legal residents should be counted, while the other candidate backs the proposition that all people living in the United States should be counted. These opposing positions are likely to be held by the candidates of the Republican and Democratic parties in the 2028 election as well. The decision is ultimately up to those voting in the 2024 and 2028 election cycles, as they will determine the president who will answer this question.