In order to apportion House representatives among the states, the Constitution requires the enumeration of the population of the United States every 10 years, granting Congress the authority to direct the manner in which this decennial census is conducted (U.S. Const. Art. I, Sec. 2, Cl. 3).  Congress delegated to the Secretary of Commerce the responsibility to conduct the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). The president himself is directed by statute to “transmit to the Congress a statement showing the whole number of persons in each State” as ascertained by the relevant census and the number of representatives to which each state would be entitled for reapportionment purposes (2 U.S.C. 2a(a)).

On July 21, 2020, the Trump administration issued a memorandum with respect to the use of the results of the 2020 census data for apportionment purposes. It set forth President Trump’s determination “that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law.”

The American Civil Liberties Union, which prioritizes the interests of illegal immigrants over the rights and security of American citizens, filed a federal lawsuit challenging President Trump’s directive. The ACLU argues that the enumeration provision of the Constitution, coupled with the 14^th Amendment, requires that all “persons” residing in a state – whatever their legal status – must be counted for apportionment purposes.

“The constitutional mandate is clear — every person counts in the census. Undocumented immigrants are people — and nothing President Trump does or says changes that fact,” said Dale Ho, director of the ACLU’s Voting Rights Project. “Trump tried once to weaponize the census against immigrant communities, and failed. He will fail again.” The ACLU director was referring to the U.S. Supreme Court opinion last year, decided on narrow procedural grounds, blocking the Trump administration from placing a citizenship question on the 2020 census.

A number of states and local jurisdictions, some of which provide sanctuary for illegal aliens, brought their own federal lawsuit challenging what their complaint described as “President Donald J. Trump’s blatant disregard of an unambiguous constitutional command.” Their arguments closely resemble those of the ACLU. Thus, a look at the ACLU’s contentions will suffice to show the fallacies of their challenges to President Trump’s directive as well.

The ACLU and other open border advocates would like nothing better than to welcome a flood of more illegal immigrants into states where they are given sanctuary from deportation. Even if the illegal aliens are not permitted to directly vote themselves for elected federal officeholders, including for members of the House of Representatives, just counting them for apportionment purposes will inflate the representation in Congress of the states that harbor illegal immigrants. Sanctuary jurisdictions will be perversely rewarded with over-representation in Congress at the expense of states that do not defy federal immigration law enforcement – precisely the outcome desired by illegal immigrant advocates such as the ACLU and the left-leaning sanctuary jurisdictions themselves. 

In its complaint, the ACLU quoted language from the 14^th Amendment, which states that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” (Emphasis added) The ACLU then cited a 1992 Supreme Court 5-4 majority opinion written by the late liberal Justice William Brennan, which upheld the right of children of illegal aliens to public education under the Equal Protection Clause of the 14^th Amendment. “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term,” Justice Brennan wrote.

The ACLU is engaging in its usual sophistry. It fails to rationally explain why illegal immigrants who do not have the right to vote for elected federal office holders should be entitled, by virtue of their illegal presence in a state, to dilute the proportional number of representatives in Congress that citizens of other states are able to vote for. Even Justice Brennan himself noted in his 1992 opinion that “those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.” The ACLU not only opposes deportation. The ACLU aims to incentivize unlawful entry of illegal aliens into the United States and their continued protection from deportation in sanctuary jurisdictions. That goes for the state and local government plaintiffs as well.

To further support its untenable position, the ACLU cited in its complaint a 2016 Supreme Court opinion written by Justice Ruth Ginsberg that dealt solely with what constitutes constitutionally acceptable drawing of districts within a single state. The Supreme Court rejected the proposition that jurisdictions should be required to draw state and local legislative districts with equal voter-eligible populations, opting instead for what it described as a total-population apportionment base. However, the Supreme Court in that case specifically declined to comment one way or the other on the constitutions and statutes in several states that authorize the removal of certain groups from the total-population apportionment base when designing congressional and state-legislative districts. The constitutions of two of those states authorize the exclusion of noncitizen immigrants.

The advocates for illegal immigrants focus on the word “persons,” which is used in the 14th Amendment apportionment provision. Illegal immigrants are “persons,” they argue, so they must be counted as part of “the whole number of persons in each state.” But this is too simplistic and misleading. The Trump administration is not suggesting that only voter-eligible persons or U.S. citizens be counted to determine a state’s proportional number of representatives in the House of Representatives. However, there is a difference between immigrants residing in a state legally being counted for apportionment purposes and illegal immigrants whose residency status is inherently tentative from day-to-day if immigration laws are followed. They are potentially subject to deportation at any time. To use illegal immigrants’ presence on the day a census count happens to be taken in determining the relative proportion of House seats per state for the next decade defies a common sense understanding of the forward-looking apportionment provisions of the Constitution.

As noted by a former counsel to the United States Senate Judiciary Committee’s Subcommittee on Immigration, “in every apportionment census in United States history, some persons present in a state at the time have not been counted.” He used historical evidence to persuasively argue that the drafters of the constitutional provisions intended that “only certain persons present in the several states are to be included in the apportionment base, namely those who have some minimum degree of stability of residence in one of the states and who are, therefore, among its number.”

States that harbor illegal immigrants from possible deportation should not be allowed to benefit from actions at the state and local levels that perpetuate the continued presence of the illegal immigrants in those states. Otherwise, they would get away with manipulating the system to unfairly distort the count of “persons,” enhancing these states’ proportion of representation in Congress at the expense of other states.