How has the Supreme Court interpreted census inclusion of noncitizens historically?
Executive summary
The Supreme Court’s recent jurisprudence treats the census count as a constitutional and statutory obligation to enumerate “whole persons,” but it has not uniformly embraced efforts to exclude or to single out noncitizens; instead the Court has enforced procedural and legal limits on executive attempts to change who is counted, most prominently rebuking the Trump administration’s citizenship-question effort in Department of Commerce v. New York as unlawful because the agency’s stated rationale was pretextual [1] [2]. Historical and doctrinal threads in lower-court litigation and expedited Supreme Court review show the Court balancing text, administrative law, and practical consequences for representation when disputes over noncitizen inclusion arrive at the bench [3] [4].
1. The baseline: “whole persons” and constitutional text remain central
Challenges over whether noncitizens — including undocumented immigrants — must be counted start from the Constitution’s enumeration clause and practices devolving from it, and advocates arguing for inclusion have pointed to the clause’s plain text requiring a count of “whole persons,” an argument that federal courts and petitioners raised in litigation leading to expedited Supreme Court review in 2020 [3].
2. Department of Commerce v. New York : permissible but procedurally constrained
In the high‑profile 2019 case over inserting a citizenship question on the 2020 short form, the Court held that asking about citizenship on the census is not per se forbidden by the Constitution or the Census Act, but the Court blocked the Trump administration’s move because Commerce Secretary Wilbur Ross provided a pretextual rationale and the administrative record did not support his decision — a ruling grounded in the Administrative Procedure Act’s prohibition on arbitrary or capricious agency action [1] [2].
3. The practical lens: undercount risks and representational consequences
Lower courts and states pressing the challenge emphasized empirical evidence that a citizenship question would depress response rates among noncitizen and Hispanic households and thereby harm distributive accuracy, representation, and allocation of federal funds — findings that the district court deemed not clearly erroneous and that informed the Supreme Court’s scrutiny of the administration’s justification [1] [5].
4. The Court as gatekeeper of process, not just policy
Chief Justice Roberts’ majority opinion in 2019 framed the decision less as a judgment on the merits of asking about citizenship and more as enforcement of administrative fidelity: agencies must disclose genuine reasons for major changes to census questionnaires, and pretextual explanations will be set aside — a line that signals the Court will police process even where substantive changes might be constitutionally possible [6] [2].
5. Competing narratives: civil‑rights groups versus administration motives
Civil‑rights organizations and immigrant advocates framed the attempt to add a citizenship question as an effort to “erase” or disempower communities of color and immigrant families by inducing undercounts, a perspective stressed in advocacy and post‑decision statements and embraced by many plaintiffs in the litigation [7] [8]. The administration countered that better citizenship data would, for example, aid Voting Rights Act enforcement — an asserted purpose the Court found insufficiently documented in the administrative record [2] [9].
6. Beyond questions: separate fights over excluding undocumented immigrants from apportionment
After the citizenship‑question fight, the administration tried other administrative routes — including a presidential memorandum and use of administrative records — to exclude undocumented immigrants from apportionment counts; those efforts produced rapid‑fire litigation and an expedited Supreme Court schedule in late 2020, reflecting ongoing doctrinal tension over whether and how noncitizens may be excluded for apportionment even when the constitutional text and historical practice favor counting whole persons [4] [3].
7. What the modest judicial doctrine implies going forward
The Court’s recent practice shows a two‑part approach when noncitizen census disputes reach it: first, treat the constitutional text and longstanding practice of counting people as a strong baseline; second, require agencies to offer authentic, evidence‑based justifications for departures — a combination that constrains executive experiments aimed at selectively excluding or intimidating noncitizen populations without foreclosing future legitimate data‑collection questions if honestly and lawfully pursued [1] [10].