Amicus Brief in the Congressional Apportionment Case Currently Before the Supreme Court

The brief filed by Univ. of Texas law professor Sanford Levinson and myself explains why the Trump administration's efforts to exclude undocumented immigrants from the apportionment count for allocating seats in the House of Representatives goes against the text and original meaning of the Constitution.


Earlier this week, University of Texas law professor Sanford Levinson and I filed an amicus brief in Trump v. New York, an important case currently before the Supreme Court. The case involves a lawsuit by New York and other state and local governments to the Trump administration's plan to exclude undocumented immigrants from the population counts that determine the allocation of seats in the House of Representatives. As we explain in the brief, the administration's position goes against the text and original meaning of the Constitution—both that of the original Apportionment Clause in Article I, Section 2 and the modified version enacted in Section 2 of the Fourteenth Amendment.

The brief expands on the points made in much shorter form in my recent Los Angeles Times  op ed about the case. Here is an excerpt from the brief, summarizing key aspects of our argument:

The Constitution requires the federal government to apportion congressional seats "among the several States" based on the number of "Persons" in each State. U.S. Const. art. I, § 2; see id. amend. XIV. In an unprecedented decision, the President has made it "the policy of the United States to exclude from the apportionment base aliens who are not in lawful immigration status…."  Because that policy flouts the Constitution's text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….

[E]xcluding undocumented immigrants is at odds with the Apportionment Clause's command that the government base congressional apportionment on the number of "Persons" living in each State. U.S. Const. art. I, § 2. "Persons" is a broad term and was equally broad at the founding. Then, as now, it referred to all human beings.

While that plain language is broad enough on its face to include undocumented immigrants living in a State, surrounding words and text from elsewhere in the Constitution reinforce that the Framers under-stood "Persons" as a broad and general term. For instance, the Apportionment Clause excludes "Indians not taxed" from the apportionment count. Because Indians were considered noncitizens with allegiance to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment base if "Persons" excluded foreigners or those with an allegiance to a sovereign other than the United States. The Constitution's use of "Citizens" in other provisions also underscores that the Framers distinguished between "Persons" and "Citizens"—a subset of "Persons…."

Appellants' contrary arguments cannot overcome these points. Appellants never address the ordinary meaning of "Persons" or the "Indians not taxed" provision, which would be superfluous if the Framers understood "Persons" to exclude foreigners. Instead, Appellants rely on the Apportionment Clause's language before it underwent stylistic changes in the Committee of Style. Because that language based apportionment on the number of "inhabitants," not "Persons," Appellants contend that the Framers intended to exclude foreigners. Appellants distort the meaning of "inhabitants." According to the founding-era sources Appellants cite, inhabitants are those people who intend to stay somewhere indefinitely. Undocumented immigrants, by and large, intend to stay in the United States indefinitely. Appellants' conjecture that some of these immigrants may be removed at some point cannot alter those persons' intention to remain here. That intention is what matters.

I should perhaps note that Sandy Levinson and I differ on a great many disputed constitutional issues—probably many more than we agree on. But we are in complete agreement on this one.

The brief goes into some detail on such issues as why undocumented immigrants are different from tourists and foreign diplomats (who historically have not been counted for apportionment), and why there is nothing unusual or intrinsically objectionable about including people in apportionment counts who did not have the right to vote. Indeed, for much of American history, a substantial majority of those counted for apportionment did not have that right.

Conservative columnist George Will devoted his Washington Post column today to our brief, and he endorses our position:

The Framers understood "persons" broadly, with the sole exception of Indians not taxed because they were considered noncitizens with an allegiance to distinct political communities: their tribes. The Framers would not have expressly excluded Indians not taxed if "persons" excluded foreigners or others with an allegiance to a government other than the U.S. government. So, the Framers clearly meant "persons" to include immigrants.

Most of the Framers, say Somin and Levinson, did not believe the federal government had the power to exclude immigrants — there was no significant federal immigration restriction until 1875 — so they could hardly have intended to exclude from apportionment "illegal" immigrants. Furthermore, the Framers expected that the congressional apportionment count would include the more than half the adult population that was not entitled to vote because of gender, or property requirements.

Conspiracy-minded readers (this is the Volokh Conspiracy, after all!) might wonder if I somehow orchestrated the Will column in advance, in order to promote our brief. The answer is no. Will found the brief and decided to write about it entirely on his own.

It is worth noting that the case could end up being dismissed as moot. The Census Bureau recently indicated that they are unlikely to be able to transmit to the White House the data the latter needs to exclude undocumented immigrants from apportionment counts before Trump leaves office on January 20. The incoming Biden administration will almost certainly reverse Trump's policy at that point, thus potentially rendering the case moot.

If the Supreme Court does decide the case, it is possible it will dismiss the plaintiff jurisdictions' case based on standing, without reaching the merits (though I believe such a ruling would be a serious mistake). Our brief does not address the standing issue.

Finally, I would like to thank Scott Eisman and his outstanding team at Freshfields Bruckhaus Deringer for their excellent pro bono work on drafting the brief with me on short notice.


NEXT: State Legislatures and Presidential Electors

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  1. Doesn’t “… and subject to the jurisdiction thereof” exclude people who successfully evade attempts to apply US law to themselves?

    1. I wouldn’t think so. One of the jobs of voters is to render judgement on the quality of the executive’s enforcement of the laws.

  2. Your brief reflects a fundamental misunderstanding of the President’s memorandum. The memorandum says only that the policy of the United States is to exclude illegal immigrants to the extent of the President’s discretion under federal law. That discretion includes the power to exclude from apportionment those people who not qualify as “inhabitants” because, as the appellants explain in detail, the constitutional enumeration embraces only “inhabitants” of a state. Many illegal aliens plainly do not qualify as inhabitants because they are, e.g., recently arrived and detained by DHS, and hence have no enduring tie to a place in the US at all—let alone one sufficient to render them “inhabitants.” As a result, these aliens can be excluded from apportionment. The President’s memo says nothing whatsoever about excluding those aliens who *do* qualify as inhabitants, and hence executing the memorandum’s directive will not violate the constitutional requirements for the enumeration.

    1. Perhaps a compromise is in order. Something like aliens count for half, or maybe 3/5 of a person.

    2. Recently arrived and detained by boarder patrol would not be county by the census anyhow.

  3. This is a situation where Textualism and Originalism combine to argue against any interpretation that the Constitution means ‘persons’ and not citizens or citizens plus legal residents or any other group other than ‘persons’ residing in the U. S.

    This is a gut check for those who call themselves conservatives and those who argue for Constitutional law. Are they going to go with their political preferences or with their principles? Based on recent history the answer is rather obvious, and once again they will forfeit their claim to any integrity of philosophy.

    1. I agree.

      Now let’s ensure we hold consistency on important principles itself as a high value, as opposed to situational ethics, rather than just treat consistency as a value to be abandoned because of situational ethics.

      1. Amen.

    2. Agreed.

      This is yet another case where some, not all, those exposing textualism/original meaning will set there idea aside to get what they want and exclude people from a population count.

  4. The only reason this is a debatable issue is because Trump made it one. Otherwise it’s not debatable.

    1. Pfft. Plenty of really, really stupid things became “debatable” and then got decided in absurd ways, on no better basis.

      Does Trump have a really solid basis for this? No, of course not.

      But if you were to eliminate every bit of current precedent that has no better basis, it would not go well for the left. Constitutional jurisprudence is a real dog’s breakfast, why shouldn’t conservatives get to add to the steaming heap, too?

      1. Fine, but then stop claiming fealty to some higher, neutral principle of jurisprudence, and just admit your reasoning is simply outcome-driven. Since it’s true, and has been true for a long time.

  5. A simple compromise is in order: Count every live body, but count them as living at their legal place of residence. Where people counted are listed as residing has historically been a regulatory decision which has been changed multiple times without legislation.

    Since illegal aliens have no legal residence in the US, they would be counted as residents of their home country. Problem solved!

    Of course, all this is beside the point, as I hear the Census department has made a point of dragging its heels on processing the data, so that the enumeration won’t be issued until after January 20th, in order to give Biden a chance to make this particular decision.

    1. FYI, your “legal domicile” has nothing to do with your immigration status.

      For instance, if an undocumented Mexican immigrant who lives in Los Angeles commits a tort against you, you can sue him in Los Angeles. You don’t have to go to Mexico. Why? Because the immigrant’s legal domicile is Los Angeles.

      Just because he isn’t “legally here” doesn’t mean that he doesn’t have a domicile, for legal purposes. They are two different senses of the term “legal”.

      1. Oh, come on, if somebody commits a tort against you in LA, you can sue them in LA because that’s where the tort took place. Even if you were both tourists visiting California when he hit your car or whatever.

        1. Not necessarily true. There’s a case in the US Supreme Court that is pending right now that is very likely to hold that situs of the tort is not enough.

          And also irrelevant. Even if my posited undocumented immigrant comes to another state to commit a tort against you, you can still sue him in California, because that’s his legal domicile.

    2. Same argument. The constitution does not specify that the person needs to be legally living in a place to be counted.

  6. Most of the Framers, say Somin and Levinson, did not believe the federal government had the power to exclude immigrants

    Art. I, §9:

    “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”

    1. “such Persons” only refers to enslaved people. I have never even heard of a serious argument questioning this interpretation.

      Therefore, this clause limits federal commerce power with respect to such people for the specified time period. It cannot be understood as a general implication that migration in general can otherwise be prohibited by Congress.

  7. Plain language with ordinary meaning: just as “ALL” means all in “in all criminal cases the accused shall enjoy right to trial by jury.” Having drafted around 300 Constitutions by the 1787, and being adept students of law and language, and representing to the people the proposed Constitution was a “compact” with the people, the framers used precise language: ordinary meaning ought to be the default. Complexity and obfuscation arguably verge on fraud in the inducement of the people whom ratified the Constitution.

    1. I suppose you picked that example because the Supreme court currently holds that “all” doesn’t really mean all, when it comes to “in all criminal cases”?

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