Since the first one conducted in 1790, “residents” have been counted in the decennial United States census. However, 1790 was long before immigration laws were passed, and tens of millions of illegal immigrants ignored them to invade America.
The Federation for American Immigration Reform (FAIR) estimates that, as of March 2025, “residents” in the United States included approximately 18.6 million illegal aliens.
Constitutionally, though, the government’s powers derive only from eligible voters — citizens — who elect the officials responsible for making and enforcing laws.
In May, White House Deputy Chief of Staff Stephen Miller said that President Donald Trump is determined “to clean up the census and make sure that illegal aliens are not counted.”
In his first term, Mr. Trump issued a memorandum to exclude illegal immigrants from the census that was immediately challenged in court.
The challenges reached the Supreme Court, where justices passed on ruling whether the president had the authority to exclude noncitizens, so the conflict persists.
Some history …
The United States Constitution calls for apportioning U.S. House of Representatives seats and Electoral College votes among the states “according to their respective Numbers.” Those “Numbers” originally included “free Persons” and “three-fifths of all other Persons” — specifically slaves — a result of the states’ compromise to balance the agrarian, slave holding southern with more populous northern states
Following the Civil War, the 14th Amendment to the Constitution was ratified to recognize the rights of former slaves. It instructed that congressional representation “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”
The 14th Amendment also predated the passage of modern immigration laws ignored by tens of millions of illegal immigrants.
Nonetheless, the language, “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State,” seems pretty cut and dried, doesn’t it?
Not so fast.
The 14th Amendment excluded Native Americans who were non-citizen members of sovereign tribal nations. Congress didn’t change its status until the 20th Century, so there is precedent for excluding resident non-citizens from the census.
Furthermore, the Secretary of Commerce is instructed to carry out the census “in such form and content as he may determine.” That at least implies some latitude.
The Secretary of Commerce is a cabinet member. Cabinet officials are subordinate to the head of the Executive Branch, in other words, the president of the United States.
Currently, Donald J. Trump is president, and Mr. Trump has made his position clear.
Both sides, pro and con, express their positions in anodyne terms, but it all boils down to politics.
Pro-counting advocates insist that, because it’s always been done, states should retain the power to count everyone within their borders, regardless of citizenship.
Anti-counters contend, accurately, 1) that resident native Americans, temporary aliens and foreign diplomatic personnel have been and some still are excluded for apportionment, 2) that counting illegals dilutes legal citizens’ congressional and electoral representation, and 3) that counting illegals incentivizes some jurisdictions to promote illegal immigration.
But why would the latter do that?
Currently, each member of the U.S. House of Representatives represents approximately 747,000 people, so for every 747,000 illegals in residence, a state stands to gain one additional House seat. If FAIR’s estimate of 18.6 million illegals present in the U.S. is accurate, non-citizens account for about 25 House seats.
However, that calculus isn’t entirely accurate, because, although there are concentrations of illegal aliens, their distribution is broad, and by-state numbers vary widely.
In fact, every state has illegal aliens, but more than one source has reported that, if illegals were not counted in the national census, the allocation of U.S. House seats would eliminate seats held by Democrats, especially in California, that counting illegals in Democrat-controlled cities alone gives Democrats ten or more additional House seats and Electoral College votes.
As the House is currently constituted, eliminating illegals from the Census could provide Republicans up to a 27-seat majority rather than the handful the party presently enjoys.
Federal expenditures in the states are based on “resident” head count, too, so money and power, both political aphrodisiacs, are at stake.
The law is unclear, and both sides have arguments, but, although both may be guilty of political and fiscal self-interest, only one respects the rights of legal American citizens.
Contact columnist Jerry Shenk at jshenk2010@gmail.com
Originally Published: August 10, 2025 at 3:34 PM EDT