Why Trump’s Plan to Exclude Undocumented Migrants From Census Count Determining Apportionment of Congressional Seats is Unconstitutional
Donald Trump plans to order a new census that excludes undocumented immigrants from the population count used to determine apportionment of congressional seats:
President Donald Trump announced in a social media post on Thursday that he has directed the Department of Commerce to begin work on a new US census that excludes undocumented immigrants from the population count.
“I have instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024,” Trump wrote in a Truth Social post.
“People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS,” the president added.
This is obviously unconstitutional, for reasons outline in an amicus brief University of Texas law Prof. Sanford Levinson (one of the nation’s leading constitutional law scholars) and I filed in the 2020 Supreme Court case of Trump v. New York, which arose the last time Trump tried this same ploy. Here’s an excerpt from the brief summarizing some of our key points:
The Constitution requires the federal government to apportion congressional seats “among the several States” based on the number of “Persons” in each State. U.S. Const. art. I, § 2; see id. amend. XIV. In an unprecedented decision, the President has made it “the policy of the United States to exclude from the apportionment base aliens who are not in lawful immigration status….” Because that policy flouts the Constitution’s text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….
[E]xcluding undocumented immigrants is at odds with the Apportionment Clause’s command that the government base congressional apportionment on the number of “Persons” living in each State. U.S. Const. art. I, § 2. “Persons” is a broad term and was equally broad at the fou
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