[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]
[Presidential Documents]
[Pages 7015-7017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01755]
Presidential Documents
Federal Register / Vol. 86 , No. 14 / Monday, January 25, 2021 /
Presidential Documents
[[Page 7015]]
Executive Order 13986 of January 20, 2021
Ensuring a Lawful and Accurate Enumeration and
Apportionment Pursuant to the Decennial Census
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, it is hereby ordered:
Section 1. Background. We have long guaranteed all of
the Nation's inhabitants representation in the House of
Representatives. This tradition is foundational to our
representative democracy, for our elected
representatives have a responsibility to represent the
interests of all people residing in the United States
and affected by our laws. This tradition also respects
the dignity and humanity of every person. Accordingly,
the executive branch has always determined the
population of each State, for purposes of congressional
representation, without regard to whether its residents
are in lawful immigration status.
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 turn,
provides that, in order to determine those numbers, an
``actual Enumeration'' of the population of the United
States must be conducted every 10 years. (U.S. Const.
art. I, sec. 2, cl. 3.) The Congress has assigned
responsibility for conducting the decennial census to
the Secretary of Commerce (Secretary). (13 U.S.C.
141(a).)
Once the Secretary, through the Director of the U.S.
Census Bureau, takes the count, the President must
carry out the apportionment of Representatives among
the States. The Secretary prepares the ``tabulation of
total population by States . . . as required for the
apportionment of Representatives,'' and reports that
tabulation to the President. (13 U.S.C. 141(b).) The
President then sends a statement to the Congress
showing ``the whole number of persons in each State,''
as ascertained under the census, and ``the number of
Representatives to which each State would be entitled
under'' the equal proportions apportionment method. (2
U.S.C. 2a(a).) The Clerk of the House of
Representatives then transmits to each State a
certification of the number of seats that the State
receives under that apportionment. (2 U.S.C. 2a(b).)
Finally, within 1 year of the decennial census date,
the Secretary must also report to the Governor and
officers or public bodies having responsibility for
legislative apportionment or districting of each State
the population tabulations to be used for apportioning
districts within that State. (13 U.S.C. 141(c).)
At no point since our Nation's Founding has a person's
immigration status alone served as a basis for
excluding that person from the total population count
used in apportionment. Before the Civil War and the
abolition of slavery, the Constitution did not give
equal weight to every person counted under the census.
(U.S. Const. art. 1, sec. 2.) In accord with
constitutional and statutory requirements, however,
every apportionment since ratification of the
Fourteenth Amendment has calculated each State's share
of Representatives based on ``the whole number of
persons in each State,'' excluding only ``Indians not
taxed''--an express constitutional exception that no
longer has legal or practical effect. (U.S. Const.
amend. XIV, sec. 2; 2 U.S.C. 2a(a).) The term ``persons
in each State'' has always been understood to include
every person whose usual place of residence was in that
State as of the
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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
practice 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 quotation marks omitted).) And it
reflects a sound policy judgment that the apportionment
base be both clear and insulated against manipulation
designed to affect the balance of power among the
States.
During the 2020 Census, the President announced a
policy that broke from this long tradition. It aimed to
produce a different apportionment base--one that would,
to the maximum extent feasible, exclude persons who are
not in a lawful immigration status. See Presidential
Memorandum of July 21, 2020 (Excluding Illegal Aliens
From the Apportionment Base Following the 2020 Census).
This policy conflicted with the principle of equal
representation enshrined in our Constitution, census
statutes, and historical tradition. The policy further
required the Census Bureau to inappropriately rely on
records related to immigration status that were likely
to be incomplete and inaccurate.
Sec. 2. Policy. Both the Fourteenth Amendment of the
United States Constitution and section 2a(a) of title
2, United States Code, require that the apportionment
base of each State, for the purpose of the
reapportionment of Representatives following the
decennial census, include all persons whose usual place
of residence was in that State as of the designated
census date, regardless of their immigration status.
These laws, affirmed by the executive branch's
longstanding historical practice, do not permit the
exclusion of inhabitants of the United States from the
apportionment base solely on the ground that they lack
a lawful immigration status. Reflecting this legal
background, and the values of equal representation and
respect that the Constitution and laws embody, it is
the policy of the United States that reapportionment
shall be based on the total number of persons residing
in the several States, without regard for immigration
status. It is likewise essential that the census count
be accurate and based on reliable and high-quality
data.
Sec. 3. Ensuring that the Apportionment Base and
State-Level Tabulations Include All Inhabitants of Each
State. In preparing the report to the President
required under section 141(b) of title 13, United
States Code, the Secretary shall report the tabulation
of total population by State that reflects the whole
number of persons whose usual residence was in each
State as of the designated census date in section
141(a) of title 13, United States Code, without regard
to immigration status. In addition, the Secretary shall
use tabulations of population reflecting the whole
number of persons whose usual residence was in each
State as of the census date, without regard to
immigration status, in reports provided to the Governor
and officers or public bodies having responsibility for
legislative apportionment or districting of each State
under section 141(c) of title 13, United States Code.
Sec. 4. Data Quality. The Secretary shall take all
necessary steps, consistent with law, to ensure that
the total population information presented to the
President and to the States is accurate and complies
with all applicable laws.
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 in this order
shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or
the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
[[Page 7017]]
(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
(Presidential Sig.)
THE WHITE HOUSE,
January 20, 2021.
[FR Doc. 2021-01755
Filed 1-22-21; 11:15 am]
Billing code 3295-F1-P