Beginning in 2018, the Trump Administration sought to exclude certain non-citizens from being counted in the census. At that time, the Department of Commerce, which administers the Census, sought to add a question to the 2020 Census regarding U.S. citizenship. Multiple states and advocacy organizations sued to stop the addition of this question, and the Supreme Court ruled against the Trump Administration. However, the Administration subsequently issued Executive Order 13,880 requiring that federal agencies share citizenship information with the Census Bureau. Towards the end of Trump’s term, his Administration issued a Memorandum expressing its intent to exclude undocumented individuals from the 2020 Census altogether. Multiple plaintiffs sued to stop this exclusion, and the Supreme Court heard their challenge in Trump v. New York on November 30, 2020. The Court ultimately dismissed the suit, holding the plaintiffs had not alleged an injury that would give them standing to sue because the time for data collection had passed. Once President Biden took office, he signed Executive Order 13,986 reversing Trump’s exclusion of undocumented immigrants from the 2020 Census. However, because the Supreme Court never expressed an opinion on the legal merits of the Trump Administration’s policy, a future administration could easily overturn Executive Order 13,986 and seek to implement the same strategy.
I. The Census, Citizenship, and the Constitution
The Census is required by the Enumeration Clause of the Constitution, which states that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . . . [t]he actual Enumeration shall be made . . . in such Manner as [the Congress] shall by Law direct.” The first census took place in 1790, and all censuses carried out since have asked questions concerning a wide range of demographic data. Although several censuses asked questions related to citizenship, most of these questions simply asked if the individual was a citizen of the U.S. or if they were naturalized. No census in American history has ever sought more detailed information about individuals’ immigration status.
II. Current Status of Citizenship Questions
In Dep’t of Commerce v. New York, the Supreme Court considered whether the Department of Commerce violated the Enumeration Clause of the Constitution in deciding to add a question about citizenship to the 2020 Census. The Court noted that the Enumeration Clause provides Congress with unlimited discretion in deciding how to carry out the enumeration process, and that Congress’ delegation of enumeration power to the Secretary of Commerce was legal. It also observed that the Census has contained some kind of question related to citizenship in nearly every count since 1820. Finally, the Court noted that, although it had never considered a question about whether the contents of a particular census were valid, it had previously considered, and rejected, multiple challenges to census counts more generally because it found that the practices used by the Secretary in those cases were reasonably related to carrying out the enumeration process.
Despite the Court finding nothing inherently wrong with the inclusion of a citizenship question, it nonetheless ruled against the Trump Administration on the grounds that the Secretary failed to provide an adequate explanation for his decision to include the citizenship question. Although the Secretary’s stated reason for including the question was to assist the Department of Justice with improving enforcement of the Voting Rights Act (VRA), the Court noted that the evidence in the record was inconsistent with this stated goal. Based on that, the Court found the Secretary’s reasons to be “contrived,” and held that it could not uphold the decision based on such inconsistent evidence. Although the Court remanded the case, it left the door open for the Department of Commerce to try adding the citizenship question again if it wished to do so in the future.
Although the Court gave the Department another chance to add the citizenship question (with a better explanation), the Trump Administration abandoned the attempt and instead issued an Executive Order mandating that federal agencies provide citizenship data to the Census Bureau. At least one agency, including the Department of Homeland Security, complied with this order and began sharing information, but it is not entirely clear how that information would be used in light of the Supreme Court’s ruling.
In July 2020, the Administration issued a Memorandum claiming its right to exclude undocumented individuals from the 2020 Census count. The Memorandum stated that “the President’s discretion to settle the apportionment is more than ‘ceremonial or ministerial’ and is essential ‘to the integrity of the [enumeration] process.’” In the Memorandum, the Administration interpreted the Enumeration Clause as requiring that the census count only “inhabitants,” not simply people who happen to be within the boundaries of a given state. It noted that at least some non-citizens have historically been excluded from census counts (such as individuals on temporary visas and foreign diplomats), and claimed that allowing states to be granted representatives based on counts that include undocumented persons was inconsistent with democratic principles because such an action would encourage more people to violate the law. The Memorandum did not address how undocumented persons would be excluded from the Census, nor did it address how undocumented persons would be distinguished from non-citizens who may be legally present in the U.S.
Upon taking office on January 20, 2021, President Biden signed an Executive Order reversing this Memorandum. In his Executive Order, Biden noted that population counts have always been conducted “without regard to whether [a state’s] residents are in lawful immigration status.” In addition, he explained that courts have consistently interpreted the term “persons” as it appears in the Constitution as referring to “every person whose usual place of residence was in that State as of the designated census date.” Based on this reasoning, Biden ordered the Secretary of Commerce to base the census count on the number of people residing in each state, consistent with longstanding practice. He also reversed the Trump Administration’s Executive Order that had required federal agencies to share citizenship data with the Census Bureau. However, the Biden Administration has provided no information on what will happen to the citizenship data that had already been provided by the Trump Administration.
III. Implications of Upholding the Exclusion of Undocumented Persons
Although the Supreme Court dismissed the case against the Trump Administration and Trump ultimately decided not to pursue the challenged policy, exclusion of undocumented persons by a future administration could change the political landscape of this country for years to come. States with large Latino populations such as California, Florida, and Texas would each lose congressional seats that they would otherwise have gained, and more politically conservative states such as Alabama, Minnesota, and Ohio would keep seats that they would otherwise have lost. Ultimately, such a decision would benefit the Republicans by giving them greater representation in the House.
Because the Trump Administration’s Memorandum did not explain how, or if, it would distinguish undocumented persons from legally present non-citizens, a future ruling in favor of such a policy could easily result in asylum applicants, holders of Temporary Protected Status (TPS), Deferred Action recipients, and Legal Permanent Residents (LPRs) being excluded from the census count. Thus, this would further the Republicans’ edge. Many of these individuals have lived in the U.S. for years, even decades, and many are long-time residents of the states in which they reside. For this reason, excluding such individuals from the Census would be inconsistent with the argument made by the Trump Administration that the Enumeration Clause requires the counting of inhabitants. It would also be inconsistent with the Administration’s stated desire to avoid giving incentives for violations of U.S. immigration laws, as individuals in these categories have affirmatively taken steps to legalize their presence in the U.S.
Although the threat of excluding undocumented persons from the Census has passed for now, the possibility of a future effort remains. President Biden has only blocked this policy via Executive Order, and such orders are easy to reverse by a future president. Furthermore, because the Supreme Court did not issue a ruling on the merits of such a policy, there is a possibility that it could eventually be upheld depending on the direction in which future administrations and the Court choose to proceed. Any decision by the Court that allows the exclusion of undocumented persons from the census count would exclude many individuals who can be considered “inhabitants” of the U.S. and would deprive heavily populated states of representation in Congress without a legitimate basis. This would change the balance of power in the U.S. and result in some voices being heard more while others are silenced.
*Celia Feldman is a second-year day student at the University of Baltimore School of Law, where she serves as a Staff Editor on Law Review. Celia is a Research Assistant for Professor Robert Knowles. Celia is a Judicial Intern for the Hon. George L. Russell, III of the U.S. District Court for the District of Maryland. This summer, Celia will intern with the U.S. Department of Justice in the Office of Immigration Litigation – Appellate Section.
 Michael Wines, 2020 Census Won’t Have Citizenship Question as Trump Administration Drops Effort, N.Y. Times (July 2, 2019), https://www.nytimes.com/2019/07/02/us/trump-census-citizenship-question.html.
 Hansi Lo Wang, How the 2020 Census Citizenship Question Ended Up in Court, NPR (Nov. 4, 2018, 10:14 AM), https://www.npr.org/2018/11/04/661932989/how-the-2020-census-citizenship-question-ended-up-in-court.
 See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019).
 Exec. Order 13880, 84 Fed. Reg. 33,821, 33,821–25 (July 11, 2019); Tara Bahrampour, What the Supreme Court’s Rulings Mean for the 2020 Census and Trump’s Attempt to Exclude the Undocumented from the Count, Wash. Post (Oct. 18, 2020, 6:00 AM), https://www.washingtonpost.com/local/social-issues/what-the-supreme-courts-rulings-mean-for-the-2020-census-and-trumps-attempt-to-exclude-the-undocumented-from-the-count/2020/10/17/5d299b98-0f71-11eb-8a35-237ef1eb2ef7_story.html.
 Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44679, 44679–81 (July 21, 2020).
 Steven Shepard, Supreme Court Tees up Census Case over Whether Trump Can Exclude Undocumented Immigrants, Politico (Oct. 16, 2020, 6:37 PM), https://www.politico.com/news/2020/10/16/supreme-court-undocumented-immigrants-census-429969.
 Trump v. New York, 141 S. Ct. 530, 535–37 (2020).
 Exec. Order 13986, 86 Fed. Reg. 7015, 7016 (Jan. 20, 2021); Hansi Lo Wang, Biden Ends Trump Census Policy, Ensuring All Persons Living in U.S. Are Counted, NPR (Jan. 20, 2021, 10:31 AM), https://www.npr.org/sections/inauguration-day-live-updates/2021/01/20/958376223/biden-to-end-trump-census-policy-ensuring-all-persons-living-in-u-s-are-counted.
 See Trump, 141 S. Ct. at 537.
 See U.S. Const. art. I, § 2, cl. 3.
 See Index of Questions, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/ (last visited Mar. 9, 2021).
 See, e.g., Index of Questions: 1870, U.S. Census Bureau [hereinafter 1870 Census], https://www.census.gov/history/www/through_the_decades/index_of_questions/1870_1.htm (last visited Mar. 9, 2021); Index of Questions: 2000, U.S. Census Bureau [hereinafter 2000 Census], https://www.census.gov/history/www/through_the_decades/index_of_questions/2000_1.html (last visited Mar. 9, 2021).
 See, e.g., 1870 Census, supra note 14; 2000 Census, supra note 14. But cf. Index of Questions: 1820, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/1820_1.html (last visited Mar. 9, 2021) (asking about the number of “foreigners not naturalized”); Index of Questions: 1830, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/1830_1.html (last visited Mar. 9, 2021) (same).
 Cf., e.g., 1870 Census, supra note 14 (asking only if an individual was “a male citizen of the United States of 21 years or upwards”); 2000 Census, supra note 14 (asking if an individual was a U.S. citizen and, if they were not born in the U.S., when they came to the U.S.).
 139 S. Ct. 2551, 2561 (2019).
 Id. at 2566.
 See id. at 2561.
 Id. at 2566.
 See generally id. at 2566–67 (noting historical precedents for inclusion of a citizenship question and demonstrating that these precedents are consistent with the Census’ goal of collecting data that goes beyond a mere population count).
 Id. at 2575.
 Id. at 2562.
 See generally id. at 2575. The Secretary expressed an interest in adding the citizenship question soon after he took office, but he did not contact the Civil Rights Division at the Department of Justice about VRA enforcement for several months. Id. Before beginning contact with the Civil Rights Division, the Secretary first attempted to get the Department of Homeland Security and the Executive Office for Immigration Review to request citizenship data that could be used in the Census. Id. However, neither of these Departments is involved in VRA enforcement. Id.
 Id. at 2576.
 Cf. id. at 2575–76 (ruling against the Department based on its failure to provide an adequate explanation for its proposed action).
 See id.
 Anita Kumar & Caitlin Oprysko, Trump Abandons Effort to Add Citizenship Question to Census, Politico (July 11, 2019, 7:15 PM), https://www.politico.com/story/2019/07/11/trump-expected-to-take-executive-action-to-add-citizenship-question-to-census-1405893.
 See Bahrampour, supra note 5.
 Hansi Lo Wang, To Produce Citizenship Data, Homeland Security to Share Records with Census, NPR (Jan. 4, 2020, 12:48 PM), https://www.npr.org/2020/01/04/793325772/to-produce-citizenship-data-homeland-security-to-share-records-with-census.
 See generally id. (observing that, while the Bureau claims that it is using the data solely for statistical purposes, it has also been sued by advocacy groups who accuse it of potentially using the data to deny representation to states that have significant Latino populations).
 See 85 Fed. Reg. at 44,679–81.
 Id. at 44,679 (quoting Franklin v. Massachusetts, 505 U.S. 788, 799–800 (1992)).
 Id. at 44,680.
 See generally id. at 44,679–81 (failing to address these questions).
 See Wang, supra note 9; see also 86 Fed. Reg. at 7016.
 86 Fed. Reg. at 7015.
 Id. at 7016.
 See generally id. at 7015–17 (failing to address this question); see also Wang, supra note 9.
 Trump v. New York, 141 S. Ct. 530, 535–37 (2020); Jeffrey S. Passel & D’Vera Cohn, How Removing Unauthorized Immigrants from Census Statistics Could Affect House Reapportionment, Pew Res. Ctr. (July 24, 2020), https://www.pewresearch.org/fact-tank/2020/07/24/how-removing-unauthorized-immigrants-from-census-statistics-could-affect-house-reapportionment/. See also Tara Bahrampour & Brittany Renee Mayes, Census Battle Ends as Trump Administration Gives up on Excluding Undocumented from Apportionment, Wash. Post (Jan. 16, 2021, 2:08 AM), https://www.washingtonpost.com/local/social-issues/census-battle-ends-as-trump-administration-gives-up-on-excluding-undocumented-from-apportionment/2021/01/16/bd17025c-57ba-11eb-a931-5b162d0d033d_story.html.
 See Passel & Cohn, supra note 45.
 See Shepard, supra note 7.
 See 85 Fed. Reg. at 44,679–81; see also Bahrampour, supra note 5.
 See id.
 Cf. CAP Immigration Team & Michael D. Nicholson, The Facts on Immigration Today: 2017 Edition, Ctr. for Am. Progress (Apr. 20, 2017, 9:00 AM), https://www.americanprogress.org/issues/immigration/reports/2017/04/20/430736/facts-immigration-today-2017-edition/ (stating that immigrants generally are establishing roots in the U.S. and are increasingly becoming homeowners).
 See 85 Fed. Reg. at 44,679.
 See, e.g., D’Vera Cohn, 5 Key Facts About U.S. Lawful Immigrants, Pew Res. Ctr. (Aug. 3, 2017), https://www.pewresearch.org/fact-tank/2017/08/03/5-key-facts-about-u-s-lawful-immigrants/.
 See supra note 10 and accompanying text.
 See supra notes 9–10 and accompanying text.
 See supra note 10 and accompanying text; see also supra notes 22–27 and accompanying text.
 See supra notes 45–51 and accompanying text.
 See supra notes 45–49 and accompanying text.