President Donald Trump on Tuesday directed his administration to exclude immigrants who are in the country illegally when calculating congressional representation, a decision that critics describe as unconstitutional and will likely face a swift court challenge.

“Respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base,” the president’s memo says.

The Constitution mandates an “actual Enumeration” every 10 years of “all persons” in the country, but the president has repeatedly tried to limit who is counted. He’s sided with nativist groups that have argued that the constitutional language was not intended to include people in the country without legal authorization.

Trump’s order comes months after the federal government began conducting the 2020 census in March. Nearly two-thirds of households nationwide have already responded to the survey, which is a key tool for determining how federal funds are distributed and how many representatives are sent to Congress.

The administration attempted to include a question about citizenship on the census form, a move that was ultimately rejected by the Supreme Court in 2019, with Chief Justice John G. Roberts Jr. ruling that Commerce Secretary Wilbur Ross had failed to honestly explain why he sought to change the census forms. Roberts called the stated reason _ a need to have information to enforce the Voting Rights Act – “contrived.”

Democrats and other critics of the administration said the effort was an attempt to suppress census response rates in blue states with large immigrant communities, like California.

The state of Alabama, for example, has gone to court seeking to have unauthorized residents excluded from the census count. Alabama officials argue that doing so would mean their state would keep an extra congressional district after the next census that would otherwise go to a state with a large number of immigrant residents.

Experts and advocacy groups remain concerned that the publicity around Trump’s push for a citizenship question already has made millions of immigrants or mixed-status families reluctant to respond to the census.

Advocacy groups that help facilitate the census were caught off guard by news of Trump’s latest order.

The Trump administration has asked Congress to give it four additional months to complete the 2020 census, blaming the COVID-19 pandemic and the need to delay in-person outreach. At the end of July, census takers are expected to begin knocking on doors of people who did not respond by mail, phone or online. 

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