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Biden Ends Trump Census Policy, Ensuring All Persons Living In U.S. Are Counted

Updated at 9:44 p.m. ET

One of President Biden's first executive actions has reversed former President Donald Trump's unprecedented policy of altering a key census count by excluding unauthorized immigrants. The change ensures 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 was sworn in as president on Wednesday, Biden signed 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."

The state counts are used once a decade to reallocate each state's share of electoral votes and the 435 seats in the House of Representatives. Since the first national head count in 1790, those numbers have never omitted any residents because of immigration status.

Biden's order also rescinds an executive order Trump issued in July 2019 as part of a project at the Census Bureau to produce citizenship data using government records as an alternative to Trump's failed push to add a citizenship question to the 2020 census forms. Trump's order directed federal agencies to share their records with the bureau, which has been compiling information from agencies including the Department of Homeland Security and the Social Security Administration, as well as some states' driver's license information.

Biden's executive action, however, does not address standing directives issued by now-former Commerce Secretary Wilbur Ross, who ordered the bureau to use the records to generate anonymized, block-level data about the U.S. citizenship status of every adult living in the country. It is not clear what will happen to the records the bureau has compiled and any data it has produced.

A GOP strategist concluded that data "would be advantageous to Republicans and Non-Hispanic Whites" when political mapmakers redraw state and local voting districts, a process that is set to begin again this year. The Census Bureau's public information office did not immediately respond to NPR's questions about the current status of the citizenship data project.

The project is currently facing an ongoing federal lawsuit led by attorneys with the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice - AAJC.

Trump's push to exclude unauthorized immigrants from numbers for reapportioning Congress sparked multiple lawsuits after it was issued in July 2020. That plan "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 had 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.

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