84 FR 33821 - Collecting Information About Citizenship Status in Connection With the Decennial Census
Federal Register, Volume 84 Issue 136 (Tuesday, July 16, 2019)
[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]
[Presidential Documents]
[Pages 33821-33825]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2019-15222]
Presidential Documents
Federal Register / Vol. 84 , No. 136 / Tuesday, July 16, 2019 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 33821]]
Executive Order 13880 of July 11, 2019
Collecting Information About Citizenship Status
in Connection With 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 as follows:
Section 1. Purpose. In Department of Commerce v. New
York, No. 18-966 (June 27, 2019), the Supreme Court
held that the Department of Commerce (Department) may,
as a general matter, lawfully include a question
inquiring about citizenship status on the decennial
census and, more specifically, declined to hold that
the Secretary of Commerce's decision to include such a
question on the 2020 decennial census was
``substantively invalid.'' That ruling was not
surprising, given that every decennial census from 1820
to 2000 (with the single exception of 1840) asked at
least some respondents about their citizenship status
or place of birth. In addition, the Census Bureau has
inquired since 2005 about citizenship on the American
Community Survey--a separate questionnaire sent
annually to about 2.5 percent of households.
The Court determined, however, that the explanation the
Department had provided for including such a question
on the census was, in the circumstances of that case,
insufficient to support the Department's decision. I
disagree with the Court's ruling, because I believe
that the Department's decision was fully supported by
the rationale presented on the record before the
Supreme Court.
The Court's ruling, however, has now made it
impossible, as a practical matter, to include a
citizenship question on the 2020 decennial census
questionnaire. After examining every possible
alternative, the Attorney General and the Secretary of
Commerce have informed me that the logistics and timing
for carrying out the census, combined with delays from
continuing litigation, leave no practical mechanism for
including the question on the 2020 decennial census.
Nevertheless, we shall ensure that accurate citizenship
data is compiled in connection with the census by other
means. To achieve that goal, I have determined that it
is imperative that all executive departments and
agencies (agencies) provide the Department the maximum
assistance permissible, consistent with law, in
determining the number of citizens and non-citizens in
the country, including by providing any access that the
Department may request to administrative records that
may be useful in accomplishing that objective. When the
Secretary of Commerce decided to include the
citizenship question on the census, he determined that
such a question, in combination with administrative
records, would provide the most accurate and complete
data. At that time, the Census Bureau had determined
based on experience that administrative records to
which it had access would enable it to determine
citizenship status for approximately 90 percent of the
population. At that point, the benefits of using
administrative records were limited because the
Department had not yet been able to access several
additional important sets of records with critical
information on citizenship. Under the Secretary of
Commerce's decision memorandum directing the Census
Bureau ``to further enhance its administrative record
data sets'' and ``to obtain as many additional Federal
and state administrative records as possible,'' the
Department has sought access to several such sets of
records maintained by other agencies, but it remains in
negotiations to secure access.
[[Page 33822]]
The executive action I am taking today will ensure that
the Department will have access to all available
records in time for use in conjunction with the census.
Therefore, to eliminate delays and uncertainty, and to
resolve any doubt about the duty of agencies to share
data promptly with the Department, I am hereby ordering
all agencies to share information requested by the
Department to the maximum extent permissible under law.
Access to the additional data identified in section 3
of this order will ensure that administrative records
provide more accurate and complete citizenship data
than was previously available.
I am also ordering the establishment of an interagency
working group to improve access to administrative
records, with a goal of making available to the
Department administrative records showing citizenship
data for 100 percent of the population. And I am
ordering the Secretary of Commerce to consider
mechanisms for ensuring that the Department's existing
data-gathering efforts expand the collection of
citizenship data in the future.
Finally, I am directing the Department to strengthen
its efforts, consistent with law, to obtain State
administrative records concerning citizenship.
Ensuring that the Department has available the best
data on citizenship that administrative records can
provide, consistent with law, is important for multiple
reasons, including the following.
First, data on the number of citizens and aliens in the
country is needed to help us understand the effects of
immigration on our country and to inform policymakers
considering basic decisions about immigration policy.
The Census Bureau has long maintained that citizenship
data is one of the statistics that is ``essential for
agencies and policy makers setting and evaluating
immigration policies and laws.''
Today, an accurate understanding of the number of
citizens and the number of aliens in the country is
central to any effort to reevaluate immigration policy.
The United States has not fundamentally restructured
its immigration system since 1965. I have explained
many times that our outdated immigration laws no longer
meet contemporary needs. My Administration is committed
to modernizing immigration laws and policies, but the
effort to undertake any fundamental reevaluation of
immigration policy is hampered when we do not have the
most complete data about the number of citizens and
non-citizens in the country. If we are to undertake a
genuine overhaul of our immigration laws and evaluate
policies for encouraging the assimilation of
immigrants, one of the basic informational building
blocks we should know is how many non-citizens there
are in the country.
Second, the lack of complete data on numbers of
citizens and aliens hinders the Federal Government's
ability to implement specific programs and to evaluate
policy proposals for changes in those programs. For
example, the lack of such data limits our ability to
evaluate policies concerning certain public benefits
programs. It remains the immigration policy of the
United States, as embodied in statutes passed by the
Congress, that ``aliens within the Nation's borders
[should] not depend on public resources to meet their
needs, but rather rely on their own capabilities and
the resources of their families, their sponsors, and
private organizations'' and that ``the availability of
public benefits [should] not constitute an incentive
for immigration to the United States'' (8 U.S.C.
1601(2)). The Congress has identified compelling
Government interests in restricting public benefits
``in order to assure that aliens be self-reliant in
accordance with national immigration policy'' and ``to
remove the incentive for illegal immigration provided
by the availability of public benefits'' (8 U.S.C.
1601(5), (6)).
Accordingly, aliens are restricted from eligibility for
many public benefits. With limited exceptions, aliens
are ineligible to receive supplemental security income
or food stamps (8 U.S.C. 1612(a)). Aliens who are
``qualified aliens''--that is, lawful permanent
residents, persons granted asylum, and certain
[[Page 33823]]
other legal immigrants--are, with limited exceptions,
ineligible to receive benefits through Temporary
Assistance for Needy Families, Medicaid, and State
Children's Health Insurance Program for 5 years after
entry into the United States (8 U.S.C. 1613(a)). Aliens
who are not ``qualified aliens,'' such as those
unlawfully present, are generally ineligible for
Federal benefits and for State and local benefits (8
U.S.C. 1611(a), 1621(a)).
The lack of accurate information about the total
citizen population makes it difficult to plan for
annual expenditures on certain benefits programs. And
the lack of accurate and complete data concerning the
alien population makes it extremely difficult to
evaluate the potential effects of proposals to alter
the eligibility rules for public benefits.
Third, data identifying citizens will help the Federal
Government generate a more reliable count of the
unauthorized alien population in the country. Data
tabulating both the overall population and the citizen
population could be combined with records of aliens
lawfully present in the country to generate an estimate
of the aggregate number of aliens unlawfully present in
each State. Currently, the Department of Homeland
Security generates an annual estimate of the number of
illegal aliens residing in the United States, but its
usefulness is limited by the deficiencies of the
citizenship data collected through the American
Community Survey alone, which includes substantial
margins of error because it is distributed to such a
small percentage of the population.
Academic researchers have also been unable to develop
useful and reliable numbers of our illegal alien
population using currently available data. A 2018 study
by researchers at Yale University estimated that the
illegal alien population totaled between 16.2 million
and 29.5 million. Its modeling put the likely number at
about double the conventional estimate. The fact is
that we simply do not know how many citizens, non-
citizens, and illegal aliens are living in the United
States.
Accurate and complete data on the illegal alien
population would be useful for the Federal Government
in evaluating many policy proposals. When Members of
Congress propose various forms of protected status for
classes of unauthorized immigrants, for example, the
full implications of such proposals can be properly
evaluated only with accurate information about the
overall number of unauthorized aliens potentially at
issue. Similarly, such information is needed to inform
debate about legislative proposals to enhance
enforcement of immigration laws and effectuate duly
issued removal orders.
The Federal Government's need for a more accurate count
of illegal aliens in the country is only made more
acute by the recent massive influx of illegal
immigrants at our southern border. In Proclamation 9822
of November 9, 2018 (Addressing Mass Migration Through
the Southern Border of the United States), I explained
that our immigration and asylum system remains in
crisis as a consequence of the mass migration of aliens
across our southern border. As a result of our broken
asylum laws, hundreds of thousands of aliens who
entered the country illegally have been released into
the interior of the United States pending the outcome
of their removal proceedings. But because of the
massive backlog of cases, hearing dates are sometimes
set years in the future and the adjudication process
often takes years to complete. Aliens not in custody
routinely fail to appear in court and, even if they do
appear, fail to comply with removal orders. There are
more than 1 million illegal aliens who have been issued
final removal orders from immigration judges and yet
remain at-large in the United States.
Efforts to find solutions that address the immense
number of unauthorized aliens living in our country
should start with accurate information that allows us
to understand the true scope of the problem.
Fourth, it may be open to States to design State and
local legislative districts based on the population of
voter-eligible citizens. In Evenwel v. Abbott, 136 S.
Ct. 1120 (2016), the Supreme Court left open the
question whether ``States may draw districts to
equalize voter-eligible population rather than
[[Page 33824]]
total population.'' Some States, such as Texas, have
argued that ``jurisdictions may, consistent with the
Equal Protection Clause, design districts using any
population baseline--including total population and
voter-eligible population--so long as the choice is
rational and not invidiously discriminatory''. Some
courts, based on Supreme Court precedent, have agreed
that State districting plans may exclude individuals
who are ineligible to vote. Whether that approach is
permissible will be resolved when a State actually
proposes a districting plan based on the voter-eligible
population. But because eligibility to vote depends in
part on citizenship, States could more effectively
exercise this option with a more accurate and complete
count of the citizen population.
The Department has said that if the officers or public
bodies having initial responsibility for the
legislative districting in each State indicate a need
for tabulations of citizenship data, the Census Bureau
will make a design change to make such information
available. I understand that some State officials are
interested in such data for districting purposes. This
order will assist the Department in securing the most
accurate and complete citizenship data so that it can
respond to such requests from the States.
To be clear, generating accurate data concerning the
total number of citizens, non-citizens, and illegal
aliens in the country has nothing to do with enforcing
immigration laws against particular individuals. It is
important, instead, for making broad policy
determinations. Information obtained by the Department
in connection with the census through requests for
administrative records under 13 U.S.C. 6 shall be used
solely to produce statistics and is subject to
confidentiality protections under Title 13 of the
United States Code. Information subject to
confidentiality protections under Title 13 may not, and
shall not, be used to bring immigration enforcement
actions against particular individuals. Under my
Administration, the data confidentiality protections in
Title 13 shall be fully respected.
Sec. 2. Policy. It is the policy of the United States
to develop complete and accurate data on the number of
citizens, non-citizens, and illegal aliens in the
country. Such data is necessary to understand the
effects of immigration on the country, and to inform
policymakers in setting and evaluating immigration
policies and laws, including evaluating proposals to
address the current crisis in illegal immigration.
Sec. 3. Assistance to the Department of Commerce and
Maximizing Citizenship Data. (a) All agencies shall
promptly provide the Department the maximum assistance
permissible, consistent with law, in determining the
number of citizens, non-citizens, and illegal aliens in
the country, including by providing any access that the
Department may request to administrative records that
may be useful in accomplishing that objective. In
particular, the following agencies shall examine
relevant legal authorities and, to the maximum extent
consistent with law, provide access to the following
records:
(i) Department of Homeland Security, United States Citizenship and
Immigration Services--National-level file of Lawful Permanent Residents,
Naturalizations;
(ii) Department of Homeland Security, Immigration and Customs Enforcement--
F1 & M1 Nonimmigrant Visas;
(iii) Department of Homeland Security--National-level file of Customs and
Border Arrival/Departure transaction data;
(iv) Department of Homeland Security and Department of State, Worldwide
Refugee and Asylum Processing System--Refugee and Asylum visas;
(v) Department of State--National-level passport application data;
(vi) Social Security Administration--Master Beneficiary Records; and
(vii) Department of Health and Human Services--CMS Medicaid and CHIP
Information System.
[[Page 33825]]
(b) The Secretary of Commerce shall instruct the
Director of the Census Bureau to establish an
interagency working group to coordinate efforts,
consistent with law, to maximize the availability of
administrative records in connection with the census,
with the goal of obtaining administrative records that
can help establish citizenship status for 100 percent
of the population. The Director of the Census Bureau
shall chair the working group, and the head of each
agency shall designate a representative to the working
group upon request from the working group chair.
(c) To ensure that the Federal Government continues
to collect the most accurate information available
concerning citizenship going forward, the Secretary of
Commerce shall consider initiating any administrative
process necessary to include a citizenship question on
the 2030 decennial census and to consider any
regulatory changes necessary to ensure that citizenship
data is collected in any other surveys and data-
gathering efforts conducted by the Census Bureau,
including the American Community Survey. The Secretary
of Commerce shall also consider expanding the
distribution of the American Community Survey, which
currently reaches approximately 2.5 percent of
households, to secure better citizenship data.
(d) The Department shall strengthen its efforts,
consistent with law, to gain access to relevant State
administrative records.
Sec. 4. 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.
(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,
July 11, 2019.
[FR Doc. 2019-15222
Filed 7-15-19; 8:45 am]
Billing code 3295-F9-P