Illegal Alien Census Exclusion Challenged in DC, California

September 17, 2020

IRLI shows that only the American people should be represented in Washington

WASHINGTON—Last Friday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the District of Columbia federal district court in support of President Trump’s decision not to include illegal aliens in the apportionment count of the census. A left-wing anti-borders group has sued to block the measure, claiming it violates the United States Constitution. Yesterday, IRLI filed a second brief in a similar case before the federal district court for the Northern District of California, and earlier had filed a brief in a similar challenge in federal district court in Manhattan.

By law, the President is required to apportion seats in the House of Representatives among the states based on census figures, an apportionment that in turn determines how many electoral votes states receive. If illegal aliens were included in the number that the President used for apportionment, states such as New York, California, and Texas would have more representatives and electoral votes, and states such as Ohio, Indiana, and Alabama would have fewer, than they would if illegal aliens were not included.

The Constitution requires “the whole number of persons in each State” to be counted in the census. Plaintiffs claim that this language means that all people physically present in each state must be counted. But, as IRLI points out in its briefs, that cannot be true, because foreign tourists present in a state are not, and should not be, counted in the census. And military personnel stationed abroad, who are not physically in a state, may be counted.

In its briefs, IRLI makes the crucial, uncontestable point that when a person—whether a voter or a non-voter, such as a child—is counted in the census for apportionment, that person receives representation in our national government, including the House of Representatives. IRLI goes on to argue that 1) only members of the American people, that is, our national political community, should be given representation in our national government, and 2) illegal aliens, as the Supreme Court and other federal courts have held, are neither part of the American people nor members of our national political community. It follows by simple logic that they should not be counted for apportionment purposes.

“It is crystal clear that our national government should represent the American people, and no one else,” said Dale L. Wilcox, executive director and general counsel of IRLI. “And court after court has held that illegal aliens are not part of the American people. They therefore should not be represented by our elected officials in Washington, as they would be if included in the apportionment count. We applaud the President for having the clarity of vision to see this, and the forthrightness to act on it. In our view, his action is not only consistent with the Constitution, but required by it.”

The cases are Common Cause v. Trump, No. 1:20-cv-2013 (D.D.C.) and City of San Jose v. Trump, No. 5:20-cv-05167 (N.D. Cal.).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]