The Constitution imposes on the federal government the constitutional obligation to count all persons residing in the United States regardless of their citizenship status for the purpose of apportioning representatives to Congress.  Consistent with this constitutional mandate, every administration for the last 150 years has counted all immigrants in the apportionment base for the purpose of allocating congressional representatives.

On July 21, 2020, however, President Trump issued a memorandum announcing that the new policy of the United States government is to “exclude from the apportionment base aliens who are not in a lawful immigration status.”  This new rule blatantly violates the text and history of the Article I and the Fourteenth Amendment and is but one in a long list of attempts by the Trump Administration to disrupt and alienate immigrant communities across this country.

Nonprofit organizations, along with some cities and individuals, filed suit in the district court for the District of Columbia, challenging the constitutionality of the government’s new policy.  CAC filed a friend-of-the-court brief on behalf of Members of Congress in support of the plaintiffs.

Our brief argued that, in order to guarantee equal representation for equal numbers of people, the Constitution mandated a count of the nation’s total population as the standard for apportioning representatives to Congress.  The Constitution’s text explicitly requires an “actual Enumeration” of the people, imposing on the federal government the duty to count the “whole number of persons in each State.”  As both Founding and Fourteenth Amendment history make clear, the Constitution requires the federal government to count “the whole body of the people” for the purpose of apportioning representatives. It draws no distinction between citizens and non-citizens, but rather requires that the “whole immigrant population should be numbered with the people and counted as part of them.”

Under the Constitution, the President cannot exclude undocumented immigrants from the apportionment base simply because of their immigration status.  To allow such a practice would significantly harm immigrant communities in this country and violate the constitutional requirement to count all persons, citizens and non-citizens alike, for the purpose of apportioning representatives to Congress.

The district court for the District of Columbia granted the defendants’ motion to dismiss the case, concluding that the case was not ripe for review.  The Supreme Court subsequently addressed the legality of the President’s memo in a separate case.