Does the Constitution allow excluding noncitizens or undocumented immigrants from the census count?
Executive summary
The Constitution’s text requires apportionment by the “whole number of persons in each State,” language courts and many scholars have long read to include noncitizens — so excluding noncitizens by statute is widely regarded as constitutionally dubious and likely would face litigation [1] [2]. Recent Republican bills propose adding a citizenship question and limiting apportionment to citizens for 2030 and future censuses, but critics say those proposals would conflict with the 14th Amendment and damage census accuracy [3] [4] [5].
1. The plain text and long practice: “persons,” not “citizens”
Article I and the 14th Amendment direct apportionment based on the “whole number of persons,” a phrase historically and legally interpreted to encompass all residents, not just citizens; scholars and civil-rights groups argue that the framers and subsequent practice counted noncitizens since the first census in 1790 [6] [2] [1].
2. Recent Republican legislation seeks to change practice by statute
Members of the House have introduced and advanced bills — including H.R. 7109 and other measures — that would add a citizenship question to the decennial census and exclude noncitizens from the apportionment base for 2030 and beyond, aiming to shift the apportionment calculation to citizens alone [3] [7] [4].
3. Legal experts and civil-rights advocates say statute alone won’t suffice
Analyses from the Congressional Research Service and civil-rights groups note that statute likely cannot override the Constitution’s “whole number of persons” requirement; excluding noncitizens for apportionment would probably require a constitutional amendment — a two‑thirds Congress and ratification by three‑quarters of states — not a simple law [2] [5].
4. Courts, precedent and past battles matter
Attempts in the Trump administration to change census questions or to omit noncitizens have produced litigation and political pushback; opponents point to prior court rulings and the legal weight of the constitutional text as major hurdles to implementing an exclusion through executive or statutory action [8] [4] [1].
5. Accuracy and administrative feasibility are central practical objections
Census critics and the Census Bureau’s own experiences show that adding a citizenship question or attempting to parse out noncitizens would likely chill participation and create severe counting errors; civil‑rights groups argue the bureau cannot reliably determine every resident’s immigration status without destroying census accuracy [5] [4].
6. Political stakes and projected effects fuel the fight
Supporters of exclusion argue noncitizens shift representation and electoral votes toward certain states; opponents counter that the constitutional guarantee of counting all persons trumps partisan calculations and that the actual apportionment effects of counting noncitizens have been modest in past decades [9] [10] [11].
7. Competing narratives: constitutional text vs. policy aims
Proponents frame the change as a correction to ensure only citizens shape congressional representation; critics frame it as an unconstitutional power grab that would suppress participation and weaken representative accuracy. Both sides have produced policy reports and litigation strategies to bolster their positions [3] [12] [5].
8. What the record of official bodies says about the path forward
Congressional proposals can change law but cannot rewrite the Constitution; expert reports cited by civil‑rights organizations and CRS conclude that an amendment would be the proper route to exclude classes of people from apportionment — a high bar rarely achievable in modern politics [2] [5].
9. Bottom line and likely outcome
Available sources show vigorous legislative efforts to exclude noncitizens by adding citizenship questions and limiting apportionment to citizens, but legal and constitutional analysts, civil‑rights groups, and prior litigation indicate such moves face serious constitutional obstacles and practical harms to census accuracy; whether courts would ultimately bar specific statutory schemes is a live question in pending and likely future lawsuits [3] [1] [5].
Limitations: available sources do not provide final court rulings resolving these 2024–2025 proposals; what courts will decide about specific statutory text remains unsettled in current reporting (not found in current reporting).