The constitutional question in Trump v. New York is open and shut. The Constitution, through Article I and the Fourteenth Amendment, explicitly requires the federal government to conduct an “actual Enumeration” of the people and to count the “whole number of persons in each State” to apportion representatives to Congress. The Constitution’s Framers wrote the requirement to conduct a census count of the people directly into the Constitution—the first nation in history to do so—in order to prevent manipulation of our democracy. It is fundamental to our democracy that the government cannot rig the census by excluding persons living in the United States from the count used to apportion representatives to Congress.

The import of the Constitution’s text is clear. Immigrants residing in the United States—regardless of their citizenship status—are persons who must be counted for apportionment purposes. The Constitution does not give the president the power to pick and choose among the people who live in the United States and decide that some people should be excluded from the constitutionally mandated census count used to apportion representatives to Congress simply because they are undocumented immigrants. By seeking to treat undocumented immigrants as non-persons, the president has run afoul of the basic constitutional rule that our system of political representation depends on a count of the entire populace.

In some parts of the Constitution, our charter explicitly uses the term “citizens,” but the Framers chose to utilize the broader term “persons” in mandating a count of the nation’s populace in apportioning representatives to Congress. The Census Clause and the Fourteenth Amendment draw no distinction between citizens and non-citizens. The sweeping language chosen by the Framers requires that the “whole immigrant population should be numbered with the people and counted as part of them,” as John Bingham argued during the debates over the Fourteenth Amendment.

In fact, the question whether noncitizens should be excluded from the apportionment base was discussed at length during the debates over the Fourteenth Amendment. During those debates, many members of Congress urged that only citizens or voters should be counted in determining congressional representation, insisting that foreigners who had arrived in America should not count for purposes of apportioning representatives to Congress. Following more than seven months of heated debate in Congress, the Fourteenth Amendment reaffirmed the federal government’s duty to count the nation’s whole population, including the entire immigration population, in apportioning representatives to Congress.

A count of the total population, Sen. Jacob Howard explained, is “the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” The authors of the Fourteenth Amendment refused to “strike from the basis of representation the entire immigrant population not naturalized,” insisting that “[u]nder the Constitution as it now is and as it always has been, the entire immigrant population of this country is included in the basis of representation.” This history should be decisive.