President Donald Trump has ordered the census to exclude anyone living in the US illegally. But wait, is that legal? Well, the short answer is maybe. There’s a mix of federal laws, a couple hundred years of tradition, and conflicting constitutional concerns that muddy the waters.
“I have instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures,” the president wrote on Truth Social Thursday, August 7. “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.”
The response from the left is precisely what one would expect: outrage. Aghast, progressives declare it’s unfair – even racist, perhaps – to exclude “undocumented citizens” from the census. But how is it fair to actual citizens and even other legal residents not to exclude illegals?
Is It Legal?
The big question about the president’s push to stop counting illegal immigrants is whether it is even legal. And the answer is annoyingly vague: maybe. The Constitution originally required a census every ten years, counting every free person and “three-fifths of all other Persons,” that is, slaves. The 14th Amendment changed it a bit, so that now congressional representation “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”
So, pre-14th Amendment, perhaps it was legal. Afterward, however, a plain reading seems pretty cut and dry. Are illegal immigrants people? Imagine a politician willingly answering “no” to that question in public!
But still, there is some leeway – or, at least, there might be. The Secretary of Commerce is instructed to carry out the census “in such form and content as he may determine.” Also, the 14th Amendment initially excluded Native Americans, who were non-citizen members of separate sovereign tribal nations – at least on paper. It wasn’t until 1924 that citizenship was extended to them by the Indian Citizenship Act.
So, is requiring the census to count only legal residents constitutional? Like so many novel presidential actions, the only way to “find out” is likely for the president to order it, for those who oppose to sue, and for the suit to climb the courts until ultimately the Supreme Court issues a ruling.
Census Culling in California?
So, moving on from whether it’s legal, the next question is, what would it accomplish? During an interview on Sunday Morning Futures, Vice President JD Vance told host Maria Bartiromo: “So California has way more House seats than it should because they have such a high population of illegal aliens.”
“So they get rewarded for welcoming illegal aliens into their state, giving them federal benefits, actually asking the taxpayers of states like Ohio to subsidize them,” he continued. VP Vance is correct to point out the Golden State as the nation’s largest cache of illegal immigrants. Furthermore, California is the most populous state in the Union, and, therefore, has the most seats in the US House. There are a total of 52 representatives for California in Congress, but how many would there be without the illegal immigrants being counted in the census? The Golden State is home to an estimated 1.8 million “undocumented” migrants, according to Pew Research Center.
So, would California lose seats in the House (and, therefore, presidential electors as well) if 1.8 million people weren’t counted on the next census? Almost certainly – but figuring out exactly how many is complicated. Federal law sets the number of representatives at 435. The first 50 of those are automatically assigned, one per state. The remainder are apportioned based not just on the size of each state’s population, but by how all the populations relate to one another in the greater whole. There’s a mathematical formula that determines the balance, called the Method of Equal Proportions.
Basically, if 1.8 million people relocated from California to a handful of other states, some House seats would move from the Golden State to those other locales. If, however, 1.8 million people simply disappear from the census, as would be the case if it no longer counted illegals, a different number of House seats would move … somewhere. The formula would rebalance the House to fit the new proportion in either case. It would be the same process, but with different results.
For those who prefer a little idle speculation, the average population per congressional district is about 765,000 right now, which means a loss of 1.8 million people could cost California two or three seats, maybe more.
Red States See Cuts, Too
But there’s more to this story: California would lose about 1.8 million people on the census, sure. But red states wouldn’t be spared. Texas and Florida have an estimated 1.6 million and 1.2 million, respectively, who then wouldn’t be counted – and they’re both Republican controlled. That’s the top three. The next three states with the most illegals are all blue states: New York at 835,000, New Jersey at 490,000, and Illinois at 424,000. Add those six up by political affiliation, and the result is a difference of less than 800,000 between the two groups, which might account for a net loss of one seat for Democrats. That may scale up slightly in a 50-state comparison, but it seems unlikely to have quite the effect Vice President Vance hopes it will.
Changing the census so that only legal residents are counted – assuming it’s constitutional – might be the fair thing to do for the sake of those Congress is supposed to actually represent. As such, maybe it’s the right thing to do if it’s legal – but don’t expect it to hit blue states quite as hard as Republicans hope.
