President Trump’s call for a new census excluding illegal migrants could face a high hurdle, constitutionally speaking. That’s because the founding parchment, which mandates a census every ten years, specifies that all “Persons,” besides “Indians not taxed,” are to be counted. That reflects the logic that federal legislators are meant to represent not just the voters but all persons in their districts. It suggests, too, that even illegals must be tallied in the census.
Mr. Trump is undeterred. He reports on his Truth Social platform that he has “instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures.” He adds that “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.” It’s not clear, though, how that plan will be squared with the plain language of the Constitution.
The debate over whether to count illegals in the census is hardly new. Mr. Trump’s former DOGE chief, Elon Musk, in 2024 called enumerating noncitizens “the biggest corruption of American democracy in the 21st century.” At the time, these columns marked the potential discrepancy between Mr. Musk’s advocacy of the First Amendment and his skepticism over the provisions of Article I, Section 2, which lays out the precepts of the decennial census.
The first such count was ordained “within three Years” of the first Congress’s seating, then every decade thereafter. “It’s as fundamental to the workings of the republic as it gets,” the Sun reckoned then as now. As to the question of who is to be counted in the census, we noted that in the Constitution “no distinction is drawn between citizens and immigrants — even if the phrase ‘other persons’ glosses over slavery.”
The Census Bureau points to this constitutional feature as “a turning point in world history.” In the past, the bureau reckons, “censuses had been used mainly to tax or confiscate property or to conscript youth into military service.” It was “the genius of the Founders,” the bureau adds, to take “a tool of government” and use it as a “tool of political empowerment for the governed over their government.”
That appraisal is explained by the deployment of the head count in the process of apportionment — meaning, the calculations that make sure the states are represented in the House in proportion to not just their voters but their population. In the Senate, by contrast, each state gets an equal vote, a feature that can’t be amended. This bicameral model of the federal legislature marked the great compromise by the Framers. It was key to ratification.
To encourage adoption of the Constitution, Madison in 54 Federalist explained that the lower house of Congress would be apportioned based on each state’s “aggregate number of inhabitants.” Since direct taxes would be calculated on the same basis, states would have less incentive to “exaggerate” their population. From the 1790 census onwards, the policy has been “to count every person living” in America, per the Census Bureau.
Counting non-citizens has led to contention. In the 1920s, the share of non-citizens here rivaled the record high of 15.2 percent reached in 2023. Members of Congress from Tennessee and Kansas proposed leaving unnaturalized people out of the census. Yet the Framers had replaced the phrase “free citizens and inhabitants” from the draft text setting up apportionment with the more expansive word “persons,” per the Congressional Research Service.
The Congressional Research Service concludes that an amendment would be required to exclude non-citizens from the census. That’s no reason to leave out the question of citizenship status. Mr. Trump tried to restore that query, but the Supreme Court turned him down in a five to four ruling that hinged on procedural matters. It’s just hard to see a majority on the high court backing the exclusion of illegals from a count not of voters but of persons.
(Except for the headline, this story has not been edited by PostX News and is published from a syndicated feed.)
