Can Trump Change A Key Census Count? Supreme Court Hears His Claim

Even as his administration is heading out the door, President Trump is trying to exclude undocumented immigrants from the decennial census. If he succeeds, it will be the first time unauthorized immigrants will not be counted for purposes of drawing new congressional districts.

Three lower courts have ruled unanimously that the president's action violates either the Constitution, the federal census statute, or both. On Monday, the U.S. Supreme Court hears arguments in one of those cases — from New York.

The start of the U.S. census

The United States was the first country to put a mandatory national population count into its Constitution. The plan was to count every person living in the newly created United States of America, and to use that count to allocate how many votes each state would get in the House of Representatives and the Electoral College.

The census was to be a reflection of "We the People" in the preamble to the Constitution, according to Margo Anderson, perhaps the leading census historian in the country, and author of The American Census: A Social History. She says that when the Founding Fathers convened for the Constitutional Convention, the question was, "How do we measure 'the People'? ... Should we do voters? Should we do property owners? Should we do this? Should we do that? And they decided ... look, let's count everybody and be done with it."

The Constitution's "Great Compromise" was that every state would receive two senators, no matter what the state's population, and the House and Electoral College would be apportioned to represent the "whole number of persons" counted in the census of each state.

There were two exceptions: Native Americans living on tribal lands, who did not pay taxes to the U.S. government, were deemed part of a different sovereign nation; and the enslaved population in the South was counted, but each slave counted only as three-fifths of a person. That changed after the Civil War when the 14th Amendment counted the former slaves as whole persons, too.

In fact, the framers of the 14th Amendment firmly rejected attempts to change the apportionment base from a whole population count to a count based on voting eligibility or citizenship. As Rep. James Blaine of Maine said at the time, "Women, children, and other non-voting classes" may have "as vital an interest in the legislation of the country" as those who actually have the right to vote.

The result has been that, as census historian Anderson observes, no census has ever been conducted that did not aim to count everyone on U.S. soil, regardless of immigration status.

Until now.