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Trump Memorandum Would Exclude Undocumented People from 2020 Census

President Donald Trump issued a memorandum to the Secretary of Commerce on July 21 declaring it the policy of the United States to exclude undocumented people from the 2020 Census. However, under Section 2 of the Fourteenth Amendment of the U.S. Constitution, “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.”  

An Overview of How Census Data Are Used to Apportion the House of Representatives,” a fact sheet from the Center on Poverty and Inequality at Georgetown Law, states that the “U.S. Constitution, as revised by the Fourteenth Amendment, requires a census of the “whole number of persons in each State” for the legislative apportionment of the House of Representatives. As such, the Census Bureau has long followed the constitutional mandate of counting a state’s total resident population for apportionment and has successfully defended this policy when challenged in court. The apportionment count is calculated using both the total resident population (which includes citizens and non-citizens who live in the U.S.) and the population of overseas federal employees. The bureau does not count citizens of foreign countries who are on a temporary visit (such as a business trip) to the U.S. or who are a part of the diplomatic community.” 

An issue brief, “The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons,” from Constitutional Accountability Center explains: 

Following more than seven months of debate, Congress adopted the Fourteenth Amendment, insisting that total population, not voter population, was the basis for our Constitution’s system of representation. “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.” The Fourteenth Amendment, which was approved by the people and became a part of the Constitution in 1868, reaffirmed that our Constitution’s system of equal representation for all depends on a count of the nation’s entire population, including non-citizens. As this history shows, the purpose of the census required by the Constitution has never been to count just citizens, but rather to count “the whole body of the people.” 

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. 

Speaker of the House Nancy Pelosi (D-CA) in a media release stated that by seeking to exclude undocumented immigrants from being counted in the 2020 Census, the President is violating the Constitution and the rule of law. “The Constitution is clear: it requires an ‘actual Enumeration’ of the ‘whole numbers of persons’ for the population count and congressional apportionment,” Speaker Pelosi stated. There is no ambiguity about its command.” Speaker Pelosi added, “The Trump Administration’s relentless, politically-motived attempt to illegally include a citizenship question on the 2020 Census was unequivocally rejected by the Supreme Court last year.” 

The Memorandum is at:  

The Center on Poverty and Inequality at Georgetown Law Fact Sheet is at:  

The issue brief from the Constitutional Accountability Center is at: