The Volokh Conspiracy

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My LA Times Op Ed on Why the Constitution Requires Including Undocumented Immigrants in House Reapportionment Counts

The issue is currently before the Supreme Court in the case of Trump v. New York.


Earlier today, the LA Times published my op ed about the key issue at stake in Trump v. New York, a case currently before the Supreme Court, involving a challenge to the Trump Administration's plan to exclude undocumented immigrants from the  2020 apportionment counts for the House of Representatives. Here is an excerpt:

The Supreme Court recently decided to hear Trump v. New York, a case challenging the Trump administration's decision to exclude undocumented immigrants from the 2020 census counts that would be used in apportioning House seats.

There are important issues on which the Constitution is vague. But not in this case. The constitutional text is clear and the Trump administration's position is wrong.

The Constitution, in Article I, Section 2, mandates that "Representatives … shall be apportioned among the several States … according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, … and excluding Indians not taxed, three fifths of all other Persons."

The word "persons" is often used in the Constitution to refer to all people, as opposed to only citizens. When a constitutional provision applies only to citizens, it uses that very word, as in the Privileges and Immunities Clause, which prevents states from denying various rights to "citizens" of other states but not noncitizens.

Moreover, if the term "free persons" were limited to citizens, there would have been no need for the exclusion of "Indians not taxed," a phrase primarily denoting Native Americans living under the authority of tribal governments. Such persons were not citizens at the time of the founding and indeed did not become citizens until Congress passed a law to that effect in 1924.

There is even less support for the idea that "persons" is somehow defined by immigration status….

It might seem strange that congressional apportionment includes noncitizens who cannot vote. But large numbers of nonvoters have always been included in apportionment counts. At the time of the founding, and for generations afterward, most state governments denied the franchise to women and to many men who failed to meet property qualifications. Yet both groups were counted for apportionment….

And even today, most states deny the vote to children under 18, many convicted felons and some of the mentally ill. Yet all these groups still count.

The problem of nonvoters being "represented" by politicians elected by others is partly mitigated by the fact that the interests and sympathies of voters and nonvoters are often intertwined. Thus many adults are sympathetic to the interests of children, and many voters in states with large populations of noncitizens are supportive of undocumented immigrants, sometimes to the extent of establishing "sanctuary" jurisdictions to protect them.

Here, I would like to add a couple points that could not be included in the op ed for lack of space. First, in addition to the main constitutional issue addressed in my article, the case does also include the procedural issues of standing, ripeness, and remedy. It's possible that the Supreme Court will overturn the lower court ruling on one of those grounds, without making any decision on the constitutionality of the administration's plan.

Second, while the text of the Constitution forbids excluding undocumented immigrants and other non-voters from apportionment counts for the House, it is—in my view—likely constitutional for them to do so when it comes to apportionment for elections to state and local offices. There are several plausible interpretations of the "one person one vote" principle that would permit exclusion of some categories of non-voters. Of course, such schemes might be forbidden under some states' own constitutions.

UPDATE: It's worth noting that the language of Article I, Section 2, quoted above, was later modified by Section 2 of the 14th Amendment (which eliminated aspects related to slavery, such as the three-fifths clause, and penalized states that abridged the franchise based on race). However, the part relevant to this case dates back to the original language from Article I, and I quoted it for purposes of considering its original meaning.