One of President-elect Joe Biden's first executive actions is set to reverse the Trump administration's unprecedented policy of altering a key census count by excluding unauthorized immigrants. The change will ensure that the U.S. continues to follow more than two centuries of precedent in determining representation in Congress and the Electoral College.
Hours after he is sworn in as president on Wednesday, Biden is expected to sign an executive order that calls for all U.S. residents, in the country legally or not, to be counted in state population numbers that, according to the 14th Amendment, must include the "whole number of persons in each state."
Since the first national head count in 1790, those numbers have never omitted any residents because of immigration status. The counts are used once a decade to reallocate each state's share of electoral votes and the 435 seats in the House of Representatives.
President Trump's plan, which sparked multiple lawsuits after it was issued in July, "violates the Constitution and the Census Act and is inconsistent with our nation's history and our commitment to representative democracy," Susan Rice, Biden's domestic policy adviser, said during a press briefing on Tuesday.
Biden has been expected to rescind Trump's presidential memo on the census apportionment counts, which Biden condemned shortly after it was announced.
Last month, the Supreme Court ruled that it would be "premature" to decide whether Trump could legally subtract unauthorized immigrants from those numbers. The high court's conservative majority noted in their opinion that the case was "riddled with contingencies and speculation."
From the beginning, Trump's effort had been hampered by the practical challenge of coming up with a state-by-state count of unauthorized immigrants given the lack of a question about immigration status on the 2020 census forms.
Days before Justice Department attorneys confirmed last week that the administration had officially given up on Trump's bid, career officials at the Census Bureau stopped trying to use government records to produce those figures, which were likely to be incomplete and inaccurate.
New state numbers from the 2020 census, which were legally due at the end of last year, have not been released yet because of delays caused by the Trump administration's last-minute schedule changes and the coronavirus pandemic. After uncovering irregularities in the information collected for the count, the Census Bureau is continuing to run quality checks and is not expected to put out results until March 6 at the earliest.
Census advocates have been urging Biden to support extensions to the reporting deadlines that the bureau requested back in April after COVID-19 forced the agency to postpone in-person counting efforts. Sen. Brian Schatz, a Democrat from Hawaii who has been serving on the Senate appropriations subcommittee for the bureau, is expected to reintroduce legislation that would formally give the bureau more time.
"President Biden will ensure that the Census Bureau has time to complete an accurate population count for each state," Rice told reporters Tuesday.