How has the Supreme Court ruled on including 'aliens' in the decennial census historically?
Executive summary
The Supreme Court has repeatedly steered clear of definitively resolving whether “aliens” without lawful status must be included in the decennial census apportionment base, dismissing or declining to decide in fast-moving litigation while lower courts have mostly held such exclusions unlawful (see district court rulings summarized in [1], and the Supreme Court dismissal in Trump v. New York [2] [3]). The Court’s 2020 per curiam dismissal found the dispute not ripe for review and avoided the statutory and constitutional question, even as Justice Breyer’s separate comments emphasized that statutes and historical practice support counting non‑citizens [3] [2].
1. A history of avoidance: the Supreme Court’s procedural exit
The high court’s most consequential recent act was procedural: in December 2020 it dismissed the challenge to the Trump memorandum directing exclusion of undocumented immigrants from the apportionment base, ruling the dispute was not yet suitable for adjudication and therefore leaving the underlying legal question unresolved [3]. Court watchers and advocates noted this decision was about timing and jurisdiction rather than the merits; the ACLU explicitly said the ruling “is only about timing, not the merits” and that the legal mandate has long been understood as counting every person [4].
2. What lower courts said before the Supreme Court stepped away
Before the Supreme Court’s dismissal, multiple federal trial courts — including three‑judge panels — had held that the Presidential memorandum violated the Census Act and related statutory apportionment provisions, finding that people “so long as they reside in the United States” qualify as “persons in” a state and therefore cannot be excluded solely for lack of lawful status [5] [2]. Those district court decisions formed the basis for the appeals that reached the Supreme Court.
3. The contentions: statutory text, historical practice and representation
Advocates for exclusion argued the President has discretion over apportionment tallies and that excluding noncitizens protects citizens’ representational interests, an argument advanced in litigation and advocacy briefs [6]. Opponents, including civil‑rights groups and multiple courts, countered that federal statutes, the Enumeration Clause’s long history, and decades of practice treat the census as counting “persons” regardless of citizenship; the district courts found the memorandum inconsistent with those statutes [1] [5].
4. How the Supreme Court framed its reluctance
When the case reached the Justices, several expressed practical and evidentiary concerns: uncertainty about whether and how a future administration would implement an exclusion, calendaring and identification logistics tied to census deadlines, and the speculative nature of projected effects, all of which the Court cited in concluding the case was not ripe [7] [3]. That reasoning led a majority to avoid issuing a binding precedent on the constitutional or statutory question [3].
5. Dissents and signals from the bench
The decision to dismiss was not unanimous on the merits: Justice Breyer (joined by Justices Sotomayor and Kagan) indicated they would have reached the question and likely viewed exclusion as unlawful, stating “the plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches” weigh against excluding aliens without lawful status [2]. That dissent shows a fault line on how to interpret “persons” and apportionment statutes.
6. Broader precedents touching census and non‑citizens
The Court has tackled related census issues before — notably the citizenship‑question litigation where the Court found the Commerce Department had provided a pretextual rationale for adding a citizenship question and remanded the matter, stopping the question from appearing on the 2020 form [8] [9]. Those rulings address administrative-law process and pretext but do not settle whether non‑citizens must be counted for apportionment.
7. Where this leaves policymaking and future litigation
Because the Supreme Court dismissed the apportionment challenge on procedural grounds, lower‑court rulings holding exclusions unlawful remain important precedents and the substantive question is legally unsettled at the high‑court level [5] [3]. Commentators and advocacy groups on both sides have signaled readiness to press the issue again; scholars note the Court “has never settled” the constitutional question, so future administrations or Congress could prompt fresh litigation or statutory change [10] [5].
Limitations: available sources do not mention any Supreme Court merits decision definitively ruling that aliens must or must not be counted; instead the record shows procedural dismissals and related administrative‑law rulings [3] [8]. Sources also do not report a later Supreme Court decision that resolves the core constitutional question (not found in current reporting).