Would excluding noncitizens from apportionment require a constitutional amendment or could Congress change the practice by statute?
Executive summary
The Fourteenth Amendment’s apportionment provision directs that Representatives be apportioned “according to their respective numbers, counting the whole number of persons in each State,” language that has been read historically and by statute to include noncitizens, and therefore excluding noncitizens by ordinary statute would collide with the Constitution and appears to require a constitutional amendment to change that rule [1] [2] [3]. Efforts by the executive branch to exclude undocumented immigrants from the apportionment base have been resisted in courts and by statute-based arguments, and the Supreme Court has not definitively upheld an executive or congressional power to override the Fourteenth Amendment’s text on this point [4] [5] [3].
1. Constitutional text and historical practice point to counting “persons,” not citizens
The operative constitutional language—rooted in the post–Civil War Fourteenth Amendment—commands that Representatives be apportioned “counting the whole number of persons in each State,” a phrase that historically was understood to govern apportionment and to replace earlier formulae such as the Three-Fifths Compromise, and that contains a single express exception for “Indians not taxed” [1] [2]. The Library of Congress Constitution Annotated and other legal explanations emphasize that since ratification of the Fourteenth Amendment every apportionment has been based on total population rather than a citizen-only tally, a practice reinforced by federal census statutes and administrative practice [2] [3].
2. Statutes and executive pronouncements have aligned with the constitutional reading
The federal statutory framework for the decennial census and reapportionment implements an “actual enumeration” and has been interpreted by successive administrations to use usual residence counts regardless of immigration status; the Biden administration’s executive order explicitly states that both the Constitution and Title 2 require apportionment on the basis of total residents without regard to immigration status [3] [5]. Advocates and legal groups have relied on that text and practice to argue that statutes and long-standing executive practice foreclose excluding noncitizens by administrative shortcut [6] [3].
3. Attempts to exclude noncitizens — executive memorandum and litigation — show limits of statutory or executive action
The Trump administration’s July 2020 memorandum directing exclusion of aliens not in lawful status from the apportionment base prompted litigation and raised the precise dispute whether the President or executive agencies could, by directive, alter the apportionment base; the Supreme Court in 592 U.S. 125 disposed of challenges on standing and ripeness grounds without resolving the constitutional question, and the Court noted practical obstacles to implementing such an exclusion [4]. Lower-court rulings and advocacy groups have pressed that the memorandum conflicted with the Fourteenth Amendment and census statutes, illustrating that executive action alone has proven vulnerable to legal challenge [6] [4].
4. Can Congress do it by statute? Not without amending the Constitution
Congress cannot, by ordinary statute, supersede an explicit provision of the Constitution; the Fourteenth Amendment’s plain text commanding that apportionment be based on the whole number of persons establishes a constitutional constraint that a statute cannot override. Sources explaining constitutional apportionment and the Census Act show that statutory law implements the constitutional command but does not have authority to alter the constitutional formula itself, so a citizen-only apportionment implemented by Congress would appear to conflict with the Fourteenth Amendment absent a constitutional amendment [2] [5] [3].
5. Alternative arguments, unresolved issues, and the practical reality
Proponents of excluding noncitizens have argued administrative discretion under census statutes or different readings of apportionment authority, and the Trump memorandum represents the most concrete assertion of that position, but courts have not validated that route and the Supreme Court declined to decide the constitutional question in 2020, leaving the legal issue unresolved at the highest level [4] [5]. While the only sure legal pathway to bar counting noncitizens for apportionment is a constitutional amendment altering Section 2’s text or its effect, the record does not include a definitive Supreme Court ruling that would permit Congress alone to change the rule by statute, and historical, statutory, and executive-branch practice continues to treat apportionment as based on total persons [2] [3] [4].