The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Why Trump's Plan to Exclude Undocumented Migrants From Census Count Determining Apportionment of Congressional Seats is Unconstitutional
The Constitution requires apportionment to be based on a count of all "persons," excluding only "Indians not taxed."
Donald Trump plans to order a new census that excludes undocumented immigrants from the population count used to determine apportionment of congressional seats:
President Donald Trump announced in a social media post on Thursday that he has directed the Department of Commerce to begin work on a new US census that excludes undocumented immigrants from the population count.
"I have instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024," Trump wrote in a Truth Social post.
"People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS," the president added.
This is obviously unconstitutional, for reasons outline in an amicus brief University of Texas law Prof. Sanford Levinson (one of the nation's leading constitutional law scholars) and I filed in the 2020 Supreme Court case of Trump v. New York, which arose the last time Trump tried this same ploy. Here's an excerpt from the brief summarizing some of our key points:
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 understood "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.
Sandy Levinson and I differ on a wide range of disputed constitutional issues - many more than we agree on. But we are in complete agreement here.
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.
I also outlined many of the same points in an October 2020 Los Angeles Times op ed.
The Supreme Court ultimately dismissed the case on procedural grounds, holding that the plaintiff states lacked standing, because it wasn't yet clear whether and to what extent Trump would actually manage to exclude undocumented immigrants from the census (he ultimately failed to achieve much before leaving office on January 20, 2021).
This time around, Trump may be able to go further down this road. If so, the Supreme Court may need to resolve the issue on the merits. When and if that happens, the right answer should be clear.
