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 the new policy of the United States government 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.

Plaintiffs filed suit in the district court for the Northern District of California, 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 mandates 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 Northern District of California concluded that the President’s attempt to exclude undocumented immigrants from the apportionment base violates the constitutional separation of powers, the Census Act of 1954, and the Reapportionment Act of 1929.  Echoing our brief, the court highlighted the history of Article I Section 2 and of the Fourteenth Amendment, concluding that “[l]ike the Framers, the drafters of the Fourteenth Amendment found it important to include noncitizens in the apportionment base.”

Specifically, the court found that “the drafting history of Article I, Section 2 establishes the Framers’ clear intent to apportion based on the number of persons residing in each state, not the number of voters.” Further, the court determined that “the drafters of the Fourteenth Amendment . . . explicitly acknowledged their intent to continue to include noncitizens in the apportionment based” and found it important to do so because “nonvoters’ interests would be represented by the elected government.”