ISSUE BRIEF: The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons

The Census is a cornerstone of our democracy. The federal government has a constitutional obligation to count all persons, both citizens and non-citizens alike, in the decennial census. The Trump administration, however, is threatening to undermine the fairness and accuracy of the 2020 census by including a citizenship question. Mandating such a question would be an end-run around the Constitution and cannot be squared with the government’s constitutional obligation to ensure a national count of all persons, regardless of where they are from or their immigration status.

Summary

More than two centuries ago, our Constitution’s Founders established a democracy premised on the idea that all persons—no matter where they are from, regardless of whether they can vote—deserve equal representation in our government. To ensure a proper count of the nation’s population and apportion representatives, the Constitution explicitly requires an “actual Enumeration” of the people. By requiring an “actual Enumeration,” the Constitution’s text imposes a clear duty on the federal government: it must count all people living in the United States, whether they are citizens or non-citizens, whether they were born in the United States or in a distant part of the world. This was a critical part of the Framers’ insurance policy against partisan efforts to manipulate the ground rules of our democratic system of government.

Of course, as it stood at the end of the 18th century, the Constitution’s promise of equal representation for all persons was grievously undermined by the Three-Fifths Clause, which provided that, for the purpose of determining representation in Congress, enslaved persons would be counted as three-fifths of a person. Following a bloody Civil War fought over slavery, the Fourteenth Amendment fixed this shameful injustice in the text of our charter and reaffirmed the need for an accurate count of all persons to apportion representatives among the states.

As these provisions of the Constitution reflect, the Census is a cornerstone of our democracy. Census data is used to apportion representatives in Congress; determine how many votes each state will have in the Electoral College; draw state, local, and congressional districts; and allocate billions of dollars of federal funds to local communities. Far from simply a computational error, failing to count all persons in the United States—as our Constitution requires—would be enormously damaging. It would undermine our democracy and shortchange undercounted communities, leaving them without the federal funds they need for infrastructure, schools, and other vital services. The Census occurs only once every ten years, and there are no do-overs. Thus, our nation would suffer the consequences of an unfair, inaccurate count for at least the next ten years, and possibly much longer. The repercussions of an unfair, inaccurate count are immense.

Despite the important role the Census plays in our constitutional order, President Donald Trump’s administration is threatening to undermine the fairness and accuracy of the 2020 decennial census. On December 12, 2017, the Department of Justice urged the Department of Commerce to add a new, untested question to the census, asking all persons residing in the United States to divulge their citizenship status. This new question, if it becomes a part of the 2020 Census, will deter participation by immigrants across the country, who do not want an official record of their immigration status and fear that their responses will be used by the government to harm them and their families. To add a citizenship question runs directly counter to the constitutional duty on the Census Bureau to ensure a count that includes everyone, regardless of citizenship status.

More from Immigration and Citizenship

Immigration and Citizenship
U.S. Supreme Court

Department of Homeland Security v. Regents of the University of California; Trump v. NAACP; and McAleenan v. Vidal

In three consolidated cases, Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal, the Supreme Court is considering whether the Trump Administration’s decision to end the Deferred Action for...
Immigration and Citizenship
October 4, 2019

RELEASE: CONGRESSIONAL LEADERS FILE BIPARTISAN AMICUS BRIEF IN SUPPORT OF DACA IN THE SUPREME COURT

“President Trump’s claim that the law made him take away DACA’s protections is completely false. The...
By: Elizabeth B. Wydra, Senator Richard Durbin, Representative Zoe Lofgren
Immigration and Citizenship
September 11, 2019

Symposium: The DACA cases may be the next big test for the Roberts Court

SCOTUSblog
Earlier this year, President Donald Trump made news when he suggested, repeatedly, that he views the Supreme...
By: Brianne J. Gorod, Dayna Zolle
Immigration and Citizenship
U.S. Court of Appeals for the District of Columbia Circuit

Grace v. Barr

In Grace v. Barr, the United States Court of Appeals for the District of Columbia Circuit is considering the legality of new rules established by the Trump administration that gut asylum protections for immigrants fleeing violence...
Immigration and Citizenship
May 3, 2019

Countering Trump’s Anti-Immigrant Attacks

From a shake-up at the Department of Homeland Security to facilitate tougher immigration enforcement to...
By: Brianne J. Gorod
Immigration and Citizenship
January 16, 2019

RELEASE: Rep. Maloney Calls for Legislative Solution to Block Census Citizenship Question

Representative Carolyn B. Maloney
WASHINGTON, DC  — Congresswoman Carolyn. B. Maloney (D-NY), co-chair of the House Census Caucus and author...