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Memo 13880MemorandumTrump 45 · R

Presidential Memorandum 13880

Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census

This memorandum directs the Secretary of Commerce to exclude undocumented immigrants from the 2020 Census count used for congressional apportionment, asserting presidential discretion to determine who qualifies as an 'inhabitant' for reapportionment purposes. It instructs the Secretary to provide data enabling the President to exercise this discretion when transmitting apportionment figures to Congress.

Federal Register Open PDF 85 FR 44679

Impact dates

  1. Secretary of Commerce to prepare report to President under 13 U.S.C. 141(b) with exclusion data

Key directives

  • Secretary of Commerce shall take all appropriate action to provide information permitting the President to exclude illegal aliens from apportionment base
  • Secretary shall include in report information tabulated according to Final 2020 Census Residence Criteria and Residence Situations methodology (83 FR 5525)
  • Policy applies to reapportionment following 2020 census

Who is ordered

Timeline

Immediate

  • Policy declaration on apportionment methodology
  • Directive to Secretary of Commerce to prepare report with exclusion data

Near term (90d)

  • Secretary of Commerce to compile census data excluding undocumented immigrants for apportionment report
  • Potential legal challenges to implementation

Long term

  • Altered congressional seat allocation for 2021-2031 if implemented
  • Precedent for executive discretion over census apportionment base
  • Potential shift in political representation among states

Risks & tensions

  • Legal vulnerability: Supreme Court precedent and constitutional text ('persons in each State') may not support exclusion; prior census practices have included all residents
  • Data feasibility: Census does not directly collect immigration status; reliance on administrative records from other agencies may be incomplete
  • Political tension: Disproportionately affects states with large undocumented populations, primarily Democratic-leaning states
  • Timing risk: Memorandum issued July 2020 with census already underway; limited time to implement data collection changes
  • Democratic legitimacy: Framed as protecting 'representative democracy' but may be challenged as partisan manipulation of electoral system
Presidential Memorandum 13880: Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census · Executive Orders