In an unprecedented move, Donald Trump has signed a memorandum instructing the U.S. Census Bureau to exclude undocumented immigrants from being counted toward the totals used to divide up Congressional seats. The memo was immediately criticized for being unconstitutional, with the American Civil Liberties Union announcing its intent to sue the Trump administration. 

In the U.S. constitution, the seats in Congress must be apportioned to states based on the “whole number of persons” in each state, counted every decade. The census has counted all residents, citizens or otherwise, since its inception in 1790. The move to bypass this very clear language, bolstered by the Supreme Court, seems to be an attempt for Republicans to preserve power.

The memo titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” argues “person” in the constitution means “inhabitant.” It also argues that the president has the authority to define that word. As pointed out by NPR, the Constitution actually gives congress, not the president, this power. 

“My administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government,” Trump said in a statement. “Just as we do not give political power to people who are here temporarily, we should not give political power to people who should not be here at all.”

It’s unclear what affect this memo will have, as many are pointing out that the census is already under way and there are no questions about citizenship status on the document—a battle the Trump administration lost last year.