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, as well as the Census Act.

The state of New York, along with numerous other states, territories, and counties, filed suit in the district court for the Southern District of New York, challenging the government’s policy.  CAC filed a friend-of-the-court brief on behalf of Members of Congress in support of plaintiffs.

The District Court for the Southern District of New York held that the Trump Administration’s policy of excluding undocumented immigrants from the apportionment base violates the Census Act, holding that “Congress mandated that the President use a specific set of numbers — those produced by the decennial census itself — for purposes of the reapportionment.”  The government appealed that decision, and the Supreme Court decided to hold oral argument in the case. CAC again filed a friend-of-the-court brief on behalf of Members of Congress.

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.”

Our brief further argued that Congress used its power to regulate the manner of the Census to create a self-executing system of apportionment based on the constitutionally mandated count of all persons living in the United States. To that end, the Census Act requires the President to include all persons living in the United States in the apportionment base regardless of citizenship status.

Thus, both the Constitution and federal statute make clear that the President may not refuse to count persons living in the United States simply because of their immigration status.

In December 2020, the Supreme Court dismissed the case by a 6-3 vote.  Specifically, the Court ruled that the case was not ripe for judicial review because it could not determine whether the Administration’s policy of excluding undocumented immigrants from the apportionment base would prove feasible and, if it were, whether it would harm those who challenged it.  Accordingly, the Court held that it lacked jurisdiction to decide the case and remanded the case to the District Court with instructions to dismiss.