In the 2010 decennial census, the Census Bureau will attempt to count the total population of the United States. This includes, as in previous censuses, all U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have suggested excluding aliens, particularly those who are in the country unlawfully, from the census count, in part so that they would not be included in the data used to apportion House seats among the states and determine voting districts within them.
One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes, or whether such action would require an amendment to the Constitution. The Constitution requires a decennial census to determine the “actual enumeration” of the “whole number of persons” in the United States. The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine intrastate districts. It appears the term “whole number of persons” is broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire population be included in the apportionment calculation. As such, it appears a constitutional amendment would be necessary to exclude any individuals from the census count for the purpose of apportioning House seats.
From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion House seats among the states. Such legislation would have either amended the Census Clause of the Constitution or enacted or amended federal census statutes. In the 111th Congress, legislation has been introduced that uses both approaches. The Fairness in Representation Act would statutorily exclude aliens from the population count for apportionment purposes (H.R. 3797 and S. 1688). Under the above analysis, it would not appear to be constitutionally sufficient for Congress to amend the federal census statutes in such manner. Meanwhile, H.J.Res. 111 would take the other approach and amend the Constitution so that only U.S. citizens would be counted in the apportionment calculation.
Other legislation in the 111th Congress would not raise the same constitutional issues since they would not appear to require the exclusion of any individuals for apportionment purposes. An amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 (S.Amdt. 2635 to H.R. 2847), would have cut off funding for the census unless the census form included questions regarding citizenship and immigration status. The amendment was subsequently ruled to be non-germane. On the other side of the issue, the Every Person Counts Act (H.R. 3855) would prohibit the Census Bureau from asking about U.S. citizenship or immigration status.
Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes (PDF)