February 5, 2021 | Dylan Ceballos
Edited by Gabriela Baghdady
The Constitution requires that the federal government count all persons residing in the United States to apportion congressional representatives . On July 21, 2020, President Trump issued an executive memorandum instructing the Secretary of Commerce to exclude undocumented immigrants from the apportionment base following the 2020 Census . In response to the President’s memorandum, New York State, along with twenty other states and cities sued the President, Secretary of State Wilbur Ross, the Department of Commerce, and the Census Bureau, arguing that the President’s memorandum is unconstitutional . In September of 2020, the Southern District of New York ruled in favor of the plaintiff, after which the Trump administration appealed to the Supreme Court . Trump v. New York was heard by the Supreme Court in November of 2020 and examined whether President Trump’s memorandum violated the requirements for congressional apportionment laid out in Article I of the Constitution, the 14th Amendment’s citizenship and equal protection clauses, and the 5th Amendment’s due process clause . The Supreme Court’s decision will set a precedent both for citizenship rights and the process of congressional apportionment for decades to come.
The plaintiffs argue that the President’s memorandum violates the Constitution’s apportionments clause, found in Article 1, Section 2. The Constitution’s apportionment clause is as follows: “representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by the whole number of free persons…and excluding Indians not taxed and three fifths of all other persons” . The plaintiffs argue that the apportionment clause specifically enumerates which persons are not included in apportionment, namely Native Americans and the enslaved. According to the plaintiffs, if non-citizens were intended to be excluded from the apportionment base, they too would be listed alongside Native Americans and enslaved persons. By enumerating certain groups that should be excluded, the Constitution implies that all residents not listed as exceptions in the count are intended to be counted in the apportionment base .
The plaintiffs also contend that the President’s memorandum violates both the plain text and judicial precedent set by the 14th Amendment. The 14th Amendment states that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state” . The question as to whether or not undocumented immigrants are to be regarded as “persons” was decided in 1982 with Plyler v. Doe, where the Supreme Court ruled that under the 14th Amendment undocumented immigrants are to be considered “persons” . If undocumented immigrants are to be considered “persons” by the 14th Amendment, it would be a blatant constitutional violation to exclude them from the apportionment base.
Finally, the plaintiffs argue that by weakening a state’s apportionment power, the memorandum unconstitutionally punishes states who do not comply with the President’s immigration policies. They claim that by doing this, the memorandum violates the 5th Amendment’s due process clause, “nor shall any person…be deprived of life, liberty or property without due process of law” . The plaintiffs argue that states are being punished by the President’s memorandum, as by lowering a state’s apportionment base, it becomes more difficult for that state to secure federal funding, perform resource allocation that is based on census data, and exercise their power in Congress. The plaintiff’s claim that the President’s memorandum inflicts all of these punishments without due process of law .
The Trump administration rebuts these claims of unconstitutionality and argues that the President has been given the power by Congress to exert discretion in conducting the census. The defense argues that Congress charges the Secretary of Commerce with conducting the census, who then presents the findings of the census to the President . Federal law then directs the President to present these findings to Congress and it is, “essential to the integrity of the process,” for the President to settle any disputes in apportionment . Additionally, the administration’s defense argues that the Constitutional basis for who is to be considered “persons” is not as clear as the plaintiffs claim. The defense argues that it has long been understood that the “whole number of persons” does not include all the individuals physically present in the state at the time of the census, but instead is only meant to refer to the “inhabitants” of each state . People in the United States for business or tourism, along with certain foreign diplomatic personnel, have routinely been excluded from the apportionment base . The defense argues that the executive branch has the power to determine who constitutes an “inhabitant” and that, “the discretion delegated to the executive branch to determine who qualifies as an inhabitant includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status” .
Ultimately, Trump v. New York is significant because it will determine both the scope of Presidential power in conducting the census and the apportionment base states rely on for the next ten years. The case will also set a precedent for the legal position of undocumented immigrants currently residing in the United States and will likely be invoked in future cases regarding the civil rights of undocumented immigrants. In all, Trump v. New York will be critical in understanding the Trump administration’s stance on undocumented immigrants, executive power, and key constitutional questions that will determine how future administrations conduct the census.
Ceballos is a senior majoring in Political Science and Government.
 U.S. Const. art. 1, §s. 2.
 Administration of Donald J. Trump, 2020 Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, Daily Comp. Pres. Docs. 1 (2020).
 United States District Court SDNY. Trump v. New York: Complaint for Declaratory and Injunctive Relief, by Letitia James, Matthew Colangelo, and Elena Goldstein, 1:20-cv-05770-UA, New York: Brennan Center, 2020, https://www.brennancenter.org/sites/default/files/2020-07/Complaint_2020-07-24.pdf.
 U.S. Const. amend. XIV
 U.S. Const. amend. V
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