President Trump is calling for a new census that would exclude illegal aliens from the population count. Trump explicitly declared, “People who are in our country illegally WILL NOT BE COUNTED IN THE CENSUS.”
Under the current system, all residents in an area are counted, regardless of legal status. As a result, sanctuary cities and states, rather than being penalized for violating federal immigration law, are effectively rewarded with additional congressional representation.
Trump’s proposal makes sense from a democratic standpoint, as it would provide fairer representation to legally registered voters. The debate centers on the role of illegal aliens in political representation. Currently, states with large populations or illegals gain congressional seats and Electoral College votes based on total population counts, including people who cannot legally vote.
States such as California, Texas, and New York benefit politically from this arrangement, while legal residents and citizens in other states effectively lose representation.
Trump contends that this creates a distorted system in which states gain political power from the presence of illegal aliens. As one supporter put it, “Illegal aliens are manipulating U.S. elections and are overrepresented in Washington, D.C.”
Since only legal voting citizens can participate in elections, it seems logical that they should be the ones counted in the census that determines how many seats a state receives in Congress. However, there are not only legal challenges to this idea, but also constitutional ones. The 14th Amendment requires counting “the whole number of persons in each State” for congressional apportionment, regardless of citizenship status.
There is precedent for including illegal aliens in the census, but precedent is not the same as law and is not obligatory to follow. Legal experts note that when Congress debated the 14th Amendment in 1866, it explicitly rejected the idea of basing apportionment solely on citizens, choosing the broader term “persons” instead.
The first census in 1790, administered by George Washington and Thomas Jefferson, counted every “inhabitant,” including many foreign-born residents, and eight signers of the Declaration of Independence were themselves foreign-born. While it has been the convention to include undocumented immigrants in the census, past practice does not make it a constitutional requirement.
Constitutional scholars maintain that the phrase “the whole number of persons in each State” was deliberately chosen by Congress in 1866 after rejecting a proposal for citizenship-based counting. Any change to how the census is conducted would require amendments to the Census Act and approval from Congress.
Legal experts note that President Trump cannot unilaterally order a new census for reapportionment purposes, and even congressional approval alone would likely be insufficient for a census excluding undocumented immigrants to be used for constitutional apportionment.
The Constitution grants Congress broad authority to conduct the census, and courts have described this power to require enumeration and collect statistics as “virtually limitless” and “unquestionable.” Under Title 13 of the U.S. Code, Congress can determine the census methodology, the questions asked, and the timing of the count.
A 1929 Senate Legislative Counsel opinion analyzing proposals to exclude aliens concluded that “there is no constitutional authority for the enactment of legislation excluding aliens from enumeration for purposes of apportionment of Representatives among the States.” The opinion determined that the term “persons” had always been understood to include aliens, consistent with established rules of statutory construction.
A 2010 Congressional Research Service report similarly concluded that excluding individuals from the count “would require an amendment to the Constitution.” Legal experts agree that to exclude illegal aliens from apportionment counts, a constitutional amendment would be required, an action that would need approval from two-thirds of both houses of Congress and ratification by three-fourths of the states.
Congress could authorize a mid-decade census, but under current law, the results cannot be used to redistribute House seats or Electoral College votes. While Congress could change this limitation, the constitutional requirement to count all “persons” for apportionment would still apply.
In summary, while Congress has broad authority over census operations, the 14th Amendment’s requirement to count all “persons” for apportionment creates a constitutional barrier that simple legislation cannot overcome. It is frustrating that doing the right thing can sometimes conflict with constitutional interpretations.
The U.S. system is based on checks and balances, which unfortunately allows sanctuary states and cities to find ways to circumvent or even impede enforcement of federal law, using their disregard for the law to gain additional representation in Congress. Ironically, they insist on following the letter of the law when it suits them, such as invoking the term “all persons,” yet ignore laws that clearly state illegal aliens are in the country unlawfully and must be deported.
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