Constitutionality of Excluding Aliens from the Census: Apportionment and Redistricting

Constitutionality of Excluding Aliens from the Census: Apportionment and Redistricting
By: Margaret Mikyung Lee and Erika K. Lunder
Source: Congressional Research Service

From the Summary:
In the 2010 decennial census, the Census Bureau will attempt to count the total population of the United States. This includes, as in previous censuses, all U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have suggested excluding aliens, particularly those who are in the country unlawfully, from the census count, in part so that they would not be included in the data used to apportion House seats among the states and determine voting districts within them.

One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes, or whether such action would require an amendment to the Constitution. The Constitution requires a decennial census to determine the “actual enumeration” of the “whole number of persons” in the United States. The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine intrastate districts. It appears the term “whole number of persons” is broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire
population be included in the apportionment calculation. As such, it appears a constitutional amendment would be necessary to exclude any individuals from the census count for the purpose of apportioning House seats.

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