My LA Times Op Ed on Why the Constitution Requires Including Undocumented Immigrants in House Reapportionment Counts
Earlier today, the LA Times published my op ed about the key issue at stake in Trump v. New York, a case currently before the Supreme Court, involving a challenge to the Trump Administration’s plan to exclude undocumented immigrants from the 2020 apportionment counts for the House of Representatives. Here is an excerpt:
The Supreme Court recently decided to hear Trump v. New York, a case challenging the Trump administration’s decision to exclude undocumented immigrants from the 2020 census counts that would be used in apportioning House seats.
There are important issues on which the Constitution is vague. But not in this case. The constitutional text is clear and the Trump administration’s position is wrong.
The Constitution, in Article I, Section 2, mandates that “Representatives … shall be apportioned among the several States … according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, … and excluding Indians not taxed, three fifths of all other Persons.”
The word “persons” is often used in the Constitution to refer to all people, as opposed to only citizens. When a constitutional provision applies only to citizens, it uses that very word, as in the Privileges and Immunities Clause, which prevents states from denying various rights to “citizens” of other states but not noncitizens.
Moreover, if the term “free persons” were limited to citizens, there would have been no need for the exclusion of “Indians not taxed,” a phrase primarily denoting Native Americans living under the authority of tribal governments. Such persons were not citizens at the time of the founding and indeed did not become citizens until Congress passed a law t