A new federal court challenge argues the Constitution’s apportionment clause was never intended to include individuals unlawfully present in the United States in congressional representation totals.
By yourNEWS Media Newsroom
A constitutional dispute over how the decennial census is conducted has resurfaced in federal court, with the State of Missouri filing a legal challenge that questions whether individuals unlawfully present in the United States should be included in population totals used to allocate seats in Congress.
The state’s recently filed lawsuit asks a federal court to order the Census Bureau to exclude illegal aliens from apportionment counts, arguing that the current policy conflicts with the Constitution’s original meaning and violates federal administrative law.
The constitutional requirement for the census appears in Article I, Section 2, Clause 3 of the U.S. Constitution, which mandates an “actual enumeration” to determine representation in the House of Representatives. The Fourteenth Amendment later required that representation be based on the “whole number of persons” in each state.
According to a Just the News report, Missouri contends that this language does not compel the federal government to count every individual physically present within a state’s borders on census day. The complaint notes that temporary visitors such as tourists are not included in apportionment figures and argues that unlawful presence should be treated similarly.
For much of American history, the question of illegal immigration’s effect on census counts was largely theoretical. Congress enacted its first exclusionary immigration statute in 1875, while numerical limits were introduced through the Immigration Act of 1921. Unauthorized entry across the border was not criminalized until 1929, meaning early census statutes operated during a period when immigration restrictions were minimal.
The issue gained sustained federal attention ahead of the 1980 census, when the Carter administration determined that illegal aliens would be included in population totals. After that census, Census Bureau data indicated that New York and California likely gained additional congressional seats while Georgia and Indiana each lost a representative because more than 2 million undocumented aliens were included in the count.
Since 1980, the Bureau has continued counting unauthorized immigrants in resident population totals used for apportionment, a practice maintained by administrations of both political parties.
Missouri argues that the executive branch lacks authority to redefine the apportionment population absent explicit congressional authorization. According to reporting by NPR, Missouri Solicitor General Louis Capozzi said, “Our position is that illegal aliens and temporary foreign visitors are not and cannot be deemed domiciled in the United States. Citizens and lawful permanent residents are domiciled, and they can be counted.”
Capozzi cited the Supreme Court’s 1992 decision in Franklin v. Massachusetts, which addressed the counting of overseas federal employees and military personnel, as support for the state’s argument that domicile is central to apportionment determinations.
The lawsuit also relies on historical sources. Early drafts of the Constitution’s Enumeration Clause referred to “inhabitants” rather than “persons,” and contemporaneous writings such as The Federalist Papers repeatedly described the census as a count of inhabitants. The first census statute, formally titled “An Act providing for the enumeration of the Inhabitants of the United States,” directed officials to count usual residents, reinforcing what Missouri describes as a domicile-based understanding of representation.
President Donald Trump has publicly supported excluding illegal aliens from census totals. In a social media post, he wrote, “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.”
Missouri has requested expedited review, raising the possibility that the Supreme Court could ultimately determine whether the Constitution permits the inclusion of illegal aliens in congressional apportionment. The outcome could affect the distribution of House seats and federal funding formulas tied to census data.
The case presents questions about constitutional text, historical interpretation, executive authority, and the meaning of representation in the modern era — issues that may now require judicial resolution at the highest level.