Collecting Information About Citizenship Status in Connection With the Decennial Census

[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]

[Presidential Documents]

[Pages 33821-33825]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[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.

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.

ionnaire. 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

e 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.

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.''

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.

mber 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)).

entified 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.

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

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

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]]

, 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

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.

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:

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.

th 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.

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.)

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