By the authority vested in me as President by the Constitution and the legal guidelines of the United States of America, it is hereby ordered:
Section 1. Background. We have lengthy assured all of the Nation’s inhabitants illustration in the House of Representatives. This custom is foundational to our consultant democracy, for our elected representatives have a accountability to characterize the pursuits of all individuals residing in the United States and affected by our legal guidelines. This custom additionally respects the dignity and humanity of each individual. Accordingly, the government department has at all times decided the inhabitants of every State, for functions of congressional illustration, with out regard to whether or not its residents are in lawful immigration standing.
The census and apportionment processes are enshrined in the Constitution. The Fourteenth Amendment apportions seats in the House of Representatives “among the several States according to their respective numbers, counting the whole number of persons in each State.” (U.S. Const. amend. XIV, sec. 2.) Article I, in flip, gives that, so as to decide these numbers, an “actual Enumeration” of the inhabitants of the United States have to be carried out each 10 years. (U.S. Const. artwork. I, sec. 2, cl. 3.) The Congress has assigned accountability for conducting the decennial census to the Secretary of Commerce (Secretary). (13 U.S.C. 141(a).)
Once the Secretary, by means of the Director of the U.S. Census Bureau, takes the rely, the President should perform the apportionment of Representatives amongst the States. The Secretary prepares the “tabulation of total population by States . . . as required for the apportionment of Representatives,” and experiences that tabulation to the President. (13 U.S.C. 141(b).) The President then sends a assertion to the Congress exhibiting “the whole number of persons in each State,” as ascertained below the census, and “the number of Representatives to which each State would be entitled under” the equal proportions apportionment methodology. (2 U.S.C. 2a(a).) The Clerk of the House of Representatives then transmits to every State a certification of the variety of seats that the State receives below that apportionment. (2 U.S.C. 2a(b).) Finally, inside 1 12 months of the decennial census date, the Secretary should additionally report to the Governor and officers or public our bodies having accountability for legislative apportionment or districting of every State the inhabitants tabulations to be used for apportioning districts inside that State. (13 U.S.C. 141(c).)
At no level since our Nation’s Founding has a individual’s immigration standing alone served as a foundation for excluding that individual from the whole inhabitants rely utilized in apportionment. Before the Civil War and the abolition of slavery, the Constitution didn’t give equal weight to each individual counted below the census. (U.S. Const. artwork. 1, sec. 2.) In accord with constitutional and statutory necessities, nonetheless, each apportionment since ratification of the Fourteenth Amendment has calculated every State’s share of Representatives based mostly on “the whole number of persons in each State,” excluding solely “Indians not taxed” — an specific constitutional exception that now not has authorized or sensible impact. (U.S. Const. amend. XIV, sec. 2; 2 U.S.C. 2a(a).) The time period “persons in each State” has at all times been understood to embody each individual whose regular place of residence was in that State as of the designated census date. (See, e.g., Act of Mar. 1, 1790, ch. 2, secs. 1, 5, 1 Stat. 101, 103; Franklin v. Massachusetts, 505 U.S. 788, 804 (1992).) This unbroken follow has ensured that “the basis of representation in the House” is “every individual of the community at large.” (Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (emphasis and citation marks omitted).) And it displays a sound coverage judgment that the apportionment base be each clear and insulated towards manipulation designed to have an effect on the steadiness of energy amongst the States.
During the 2020 Census, the President introduced a coverage that broke from this lengthy custom. It aimed to produce a totally different apportionment base — one that might, to the most extent possible, exclude individuals who are usually not in a lawful immigration standing. See Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census). This coverage conflicted with the precept of equal illustration enshrined in our Constitution, census statutes, and historic custom. The coverage additional required the Census Bureau to inappropriately rely on information associated to immigration standing that had been seemingly to be incomplete and inaccurate.
Sec. 2. Policy. Both the Fourteenth Amendment of the United States Constitution and part 2a(a) of title 2, United States Code, require that the apportionment base of every State, for the function of the reapportionment of Representatives following the decennial census, embody all individuals whose regular place of residence was in that State as of the designated census date, no matter their immigration standing. These legal guidelines, affirmed by the government department’s longstanding historic follow, don’t allow the exclusion of inhabitants of the United States from the apportionment base solely on the floor that they lack a lawful immigration standing. Reflecting this authorized background, and the values of equal illustration and respect that the Constitution and legal guidelines embody, it’s the coverage of the United States that reapportionment shall be based mostly on the whole variety of individuals residing in the a number of States, with out regard for immigration standing. It is likewise important that the census rely be correct and based mostly on dependable and high-quality information.
Sec. 3. Ensuring that the Apportionment Base and State-Level Tabulations Include All Inhabitants of Each State. In making ready the report to the President required below part 141(b) of title 13, United States Code, the Secretary shall report the tabulation of whole inhabitants by State that displays the entire variety of individuals whose regular residence was in every State as of the designated census date in part 141(a) of title 13, United States Code, with out regard to immigration standing. In addition, the Secretary shall use tabulations of inhabitants reflecting the entire variety of individuals whose regular residence was in every State as of the census date, with out regard to immigration standing, in experiences supplied to the Governor and officers or public our bodies having accountability for legislative apportionment or districting of every State below part 141(c) of title 13, United States Code.
Sec. 4. Data Quality. The Secretary shall take all mandatory steps, according to legislation, to be sure that the whole inhabitants data offered to the President and to the States is correct and complies with all relevant legal guidelines.
Sec. 5. Revocation. Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census), and the Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census), are hereby revoked.
Sec. 6. General Provisions. (a) Nothing on this order shall be construed to impair or in any other case have an effect on:
(i) the authority granted by legislation to an government division or company, or the head thereof; or
(ii) the features of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be applied according to relevant legislation and topic to the availability of appropriations.
(c) This order just isn’t meant to, and doesn’t, create any proper or profit, substantive or procedural, enforceable at legislation or in fairness by any celebration towards the United States, its departments, businesses, or entities, its officers, staff, or brokers, or some other individual.
JOSEPH R. BIDEN JR.
THE WHITE HOUSE,
January 20, 2021
