“Sunset at the White House,” Ted Eytan

October 19, 2020; Rollcall and Politico

The US Department of Commerce, which houses the US Census Bureau, is under a lot of pressure these days. They have to complete the census and present apportionment counts (of congressional seats) to the president by December 31, 2020. But on November 30th, the Supreme Court will hear arguments in Trump v. New York to determine if undocumented immigrants will or will not be counted in this census. It is like when your major term paper is due, and you cannot complete the research section because the data you need is not available. Without question, there are problems on many levels with this census count and with this Supreme Court case.

This is not the first time that President Trump has taken his issues with counting the numbers of people in the nation to the courts. The importance of the census is not lost on him—or anyone else, as this population count every ten years is the way congressional seats are allocated. It is constitutionally mandated in Article I, Section 2: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers. The 14th Amendment requires districts to apportion congressional seats based on “counting the whole number of persons in each State, excluding Indians not taxed.” Counting and numbers figure big in this case, as they do in the Constitution. And for President Trump, counting is all about immigrants and ways in which they can be excluded from the census.

In July 2020, President Trump issued a memorandum directing the Census bureau to subtract undocumented immigrants from the count so they would not figure into apportionment. This followed the president’s loss in the Supreme Court when he tried to add a citizenship question to the census. The response to this memorandum was immediate and swift: lawsuits from municipalities and activists who argued this was nothing more than a power grab by the administration and that it was unconstitutional. When the memorandum was blocked by a lower court in September, the administration took the case directly to the Supreme Court. And now, with little time and much at stake, the nation will turn to what will be a newly constituted Supreme Court to sort this out.

The ramifications for Trump v. New York are many. They extend well beyond the apportionment issue. It is a dollars-and-cents issue as well. The distribution of nearly $675 billion dollars in public funding depends on the results of the census. Five key healthcare programs that comprise 48.1 percent of all federal grants to states that disproportionally impact children are a part of that $675 billion, including Medicare Part D, Traditional Medicaid (approximately 45 percent of beneficiaries are children), State Children’s Health Insurance Program (CHIP), Title IV-E Foster Care and Title IV-E Adoption Assistance. There’s a formula used by the Department of Health and Human Services that is required by the Social Security Act to determine each state’s allocation. Part of that formula uses the state’s total (counted) population. If fewer people in a state are counted, states lose in this apportionment of funds. If states lose, their people lose. But not just their people lose—young children lose. A one-percent population undercount has potential to cause millions in lost (and needed) healthcare revenue for children in some states.

The impact of Trump v. New York on education is yet another risk in this anti-immigrant case. Even before this case, concern about the census and education was expressed in a 2019 Education Week article.

For communities with significant numbers of Latinx and immigrant residents, the barriers to an accurate 2020 Census count are high—and so are the stakes for their schools.

The census count has grave implications for school funding for the next decade: Undercounts could put districts at risk of losing hundreds of millions of dollars for early-childhood education, high-poverty-area schools, special education, foster-care funding, and child-care support for low-income families.

Nearly 40 states are likely to miss out on federal funds for programs serving families and children because of an undercount of Latinx residents, according to a report released in earlier this year from Child Trends, a Bethesda, Maryland-based nonpartisan research organization.

More than 1 in 4 children younger than 5 in the United States are Hispanic, and while many of the children are US citizens, they may live in mixed-status homes with family members who are naturalized citizens or undocumented immigrants.

“There’s still fear among those family members about responding to the Census,” said Dana Thompson, a Child Trends researcher.

While the Trump administration wants to focus this strictly on apportionment and seats in Congress, there is so much more at stake. It is also about who counts as a person, which was ignored to a great extent until the Civil War when enslaved persons were no longer counted as 3/5 of a person in apportionment.

“They’re asking the courts to ultimately conclude, essentially to ignore, what I think is the plain meaning of both the Constitution and the federal statutes at issue that talk about people,” Vermont Law School professor Jared Carter says. “And to ignore the fact that we fought a civil war and passed the 14th Amendment to prevent the very sort of discrimination, parsing the definition of personhood, that the administration wants to do now.”

Because the census does not ask about citizenship, it will be difficult to determine just how the Census Bureau and the administration will figure out just who is and who is not undocumented. When all is said and done, it may only affect a small number of congressional seats, so this may be more symbolic than anything else. But it continues a pattern with the Trump administration of harsh policies on immigration and the treatment of undocumented persons as nonentities. It is a sad reflection on this administration when one looks at the contributions made by so many as seen in the DACA program and from the many nonprofits working with immigrant communities. Perhaps it is in the best interest of this nation that the data being sought to complete this “term paper” is just not available and not needed.—Carole Levine