https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/
MEMORANDUM FOR THE SECRETARY OF COMMERCE
SUBJECT: Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census
Sec. 2. Policy. 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. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.
- Memorandum, White House, 21st Jul 2020
As far as United States politics cycles go, there are three to do with elections and the fourth which has to do with the census. Members of the House of Representatives are elected every two years and are always up for reelection. Members of the Senate are split into three classes and have six year terms, which means that a third of Senators are up for reelection at any given time. Presidents of the United States are elected for four year terms. The fourth cycle is the census, which is the basis upon which the number of members of the House of Representatives are apportioned among the states; which is on a ten year cycle.
If you take the four cycles together, it means that every four years all of the House, a third of the Senate, and the President are all on the ballot at the same time. Every twenty years though, the census is also taken in that same election year as opposed to just one where the House and a third of the Senate are up for reelection; such a year of the nexus of those things coming together is 2020.
The 2020 Census like every other census, apportions the number of members that each state gets in the House of Representatives and this is why President Donald Trump, is so scared.
The reapportionment of members of the House of Representatives, scares people of a faction who stand to lose members. This is a similar issue as to why the District of Columbia and Puerto Rico are denied statehood. A state is entitled to two Senators and that would mean that as both the District of Columbia and Puerto Rico are both nominal wins for the Democratic Party, then the balance of power in the Senate would shift for the foreseeable future.
Likewise, the reapportion of the members of the House because it is dependent on the population of the states, would also mean that states like California and New York would gain extra members if illegal aliens are counted in the census. Trump's order has nothing actually to do with the morality or rightness of counting the people of people who are in the country illegally but rather, the political consequences of reapportionment.
The bottom line for the argument against Puerto Rico is this and nothing else: there are 3.4 million people currently living in Puerto Rico which means that they would be entitled to five seats in the US House if they were a state. (They'd get the 128th, 209th, 294th and 378th seats, in addition to their automatic seat, in case you were wondering.) The five unlucky states that would lose one seat each? Minnesota, California, Texas, Washington and Florida. Almost certainly, all five would be the loss of Republican seats in the House.
The size of the US House of Representatives has been capped at 435 voting members by law for over a century. So Congress could add seats to the House for Puerto Rico. (When Alaska and Hawaii became states, the number of voting representatives was briefly increased to 437 before returning back to 435 with the next census.) And then (maybe) reduce the number with the next census.
The reason why President Donald Trump doesn't want to include illegal aliens in the census is identical. California would likely pick up two more seats; with New York and Florida picking up one each. Again the losers would be Texas, Washington and Minnesota; which would all be Republican seats.
I do not think that Mr Trump either has the political acumen nor the foresight to have thought about any of these implications; instead I suggest that the advice came from people like Mitch McConnell, who play the game of politics for things which are bigger than proverbial sheep stations.
However, I personally think that Mr Trump's Executive Order is overreach and quite possibly illegal:
https://www.law.cornell.edu/constitution/articlei
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
- Article 1, Section 2, US Constitution
Article 1 Section 2 of the US Constitution vests the power to conduct the census not in the hands of the President but in the hands of the Congress.
I do not think that my opinion is wrong; especially when you consider that no lesser authority than the US Government also says this on its own website about the census:
https://www.census.gov/programs-surveys/decennial-census/about/census-constitution.html
The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.
- Census.gov website, as at 26th Jul 2020.
Setting aside the openly racist roots of the United States and counting some as 'three fifths of a person' for the statistical count (ie. slaves), the Constitution emphatically empowers the Congress and not the President. It also doesn't speak about whether or not people have either citizenship or voting rights; it is worth remembering that women didn't get the right to vote ian the United States until 1920 and there were still vestiges of disenfranchisement until the Civil Rights Act of 1965.
https://www.law.cornell.edu/constitution/amendmentxiv
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
- 14th Amendment, Section 2
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
- 14th Amendment, Section 5
Just in case the main body of the text of the US Constitution wasn't clear enough, the 14th Amendment reconfirms that the apportionment of members of the House of Representatives happens on the basis of the number of persons in the state and that Congress, not the President, has the power to enforce the provisions of the article.
If I as an Australian citizen and not a constitutional lawyer can walk through the provisions of the US Constitution this easily, then I do not think that it should be all that hard for the Supreme Court of the United States to hand back President Donald Trump's Executive Order and tell him to throw it into the bin.
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