Sec. 1 Background
The census and apportionment processes are enshrined in the Constitution. The Fourteenth Amendment apportions seats in the House of Representatives “among the several States according to their respective numbers, counting the whole number of persons in each State.” (U.S. Const. amend. XIV, sec. 2.) Article I, in turn, provides that, in order to determine those numbers, an “actual Enumeration” of the population of the United States must be conducted every 10 years. (U.S. Const. art. I, sec. 2, cl. 3.) The Congress has assigned responsibility for conducting the decennial census to the Secretary of Commerce (Secretary). (13 U.S.C. 141(a).)
Once the Secretary, through the Director of the U.S. Census Bureau, takes the count, the President must carry out the apportionment of Representatives among the States. The Secretary prepares the “tabulation of total population by States . . . as required for the apportionment of Representatives,” and reports that tabulation to the President. (13 U.S.C. 141(b).) The President then sends a statement to the Congress showing “the whole number of persons in each State,” as ascertained under the census, and “the number of Representatives to which each State would be entitled under” the equal proportions apportionment method. (2 U.S.C. 2a(a).) The Clerk of the House of Representatives then transmits to each State a certification of the number of seats that the State receives under that apportionment. (2 U.S.C. 2a(b).) Finally, within 1 year of the decennial census date, the Secretary must also report to the Governor and officers or public bodies having responsibility for legislative apportionment or districting of each State the population tabulations to be used for apportioning districts within that State. (13 U.S.C. 141(c).)
At no point since our Nation's Founding has a person's immigration status alone served as a basis for excluding that person from the total population count used in apportionment. Before the Civil War and the abolition of slavery, the Constitution did not give equal weight to every person counted under the census. (U.S. Const. art. 1, sec. 2.) In accord with constitutional and statutory requirements, however, every apportionment since ratification of the Fourteenth Amendment has calculated each State's share of Representatives based on “the whole number of persons in each State,” excluding only “Indians not taxed”—an express constitutional exception that no longer has legal or practical effect. (U.S. Const. amend. XIV, sec. 2; 2 U.S.C. 2a(a).) The term “persons in each State” has always been understood to include every person whose usual place of residence was in that State as of the designated census date. ( See, e.g., Act of Mar. 1, 1790, ch. 2, secs. 1, 5, 1 Stat. 101, 103; Franklin v. Massachusetts, 505 U.S. 788, 804 (1992).) This unbroken practice has ensured that “the basis of representation in the House” is “every individual of the community at large.” ( Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (emphasis and quotation marks omitted).) And it reflects a sound policy judgment that the apportionment base be both clear and insulated against manipulation designed to affect the balance of power among the States.
During the 2020 Census, the President announced a policy that broke from this long tradition. It aimed to produce a different apportionment base—one that would, to the maximum extent feasible, exclude persons who are not in a lawful immigration status. See Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census). This policy conflicted with the principle of equal representation enshrined in our Constitution, census statutes, and historical tradition. The policy further required the Census Bureau to inappropriately rely on records related to immigration status that were likely to be incomplete and inaccurate.