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AG Nessel, Coalition Defend Census Against Trump Administration's Latest Attack at Supreme Court

LANSING – A large coalition of states, cities, and counties argued before the United States Supreme Court Monday against President Trump’s continued attempts to illegally leave millions of undocumented immigrants out of the apportionment base that establishes the number of members in the House of Representatives that each state receives. Despite numerous losses in its efforts to politicize the 2020 Decennial Census, the Trump administration is seeking to again violate basic constitutional and statutory commands. Michigan Attorney General Dana Nessel and the coalition argued that the administration must count the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution and the Census Act unambiguously require.   

“Federal law is very clear when it comes to the Census and who must be counted,” Nessel said. “This policy violates a longstanding constitutional and statutory requirement and clearly disregards the rules outlined in the U.S. Constitution and the Census Act.” 

In July, a coalition of states, cities and counties filed a lawsuit against President Trump, Secretary of Commerce Wilbur Ross, and others after they announced that they would leave millions of undocumented immigrants out of the apportionment base that follows the Decennial Census count. The lawsuit sought to stop the Trump administration from violating the longstanding constitutional and statutory requirement to count the “whole number of persons” residing in each state for apportionment, without regard to immigration status. In August, the coalition filed a motion for summary judgment in the case, which was granted in September by a three-judge court that stated that the president’s plan to exclude undocumented immigrants from the apportionment base was unlawful.  

On Monday, the coalition specifically argued that the exclusion of undocumented immigrants from the apportionment base violates Article I Section 2 of the U.S. Constitution, the Fourteenth Amendment, and the Census Act. Additionally, this exclusion conflicts with long-recognized Supreme Court precedent. The coalition asked the Supreme Court to require the president and his administration to adhere to their obligation to base congressional apportionment on “the whole number of persons in each state” and to forbid them from excluding undocumented immigrants from the apportionment base, just as the lower court did. 

The U.S. Constitution and Census Act clearly state that, for purposes of apportioning members of the House of Representatives among the states, every person residing in the United States on Census Day — or April 1 this past year — must be counted. But, in July, President Trump declared, in a presidential memorandum, his intent to exclude undocumented immigrants from the apportionment base — the first time in the nation’s history such action has been taken.  

Specifically, Article I Section 2 of the U.S. Constitution says representatives shall be apportioned among states according to their respective numbers. The major exception to this rule was the Three-Fifths Compromise, which was instituted to resolve disputes over how and whether slaves would be included in a state’s total count. The compromise counted each slave as only three-fifths of any other person, specifically limiting the number of representatives and electoral-college votes — and essentially the power — of states with large slave populations. 

In 1868, after the Civil War ended and when slaves were finally free, the Fourteenth Amendment was adopted to provide equal protection under the law to all persons, including former slaves, stating that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State...” The framers deliberately chose the phrase “whole number of persons” to refer to all persons living in each state — including the entire immigrant population.  

More than 150 years of history, practice, and judicial and administrative precedents have since established that the apportionment of representatives must be based on all persons living in each state, regardless of their citizenship or immigration status. Additionally, Congress has reinforced that requirement by providing that the census must tabulate the “total population” by states, and the apportionment should be based on the “whole number of persons” in each state as determined by the census. 

In fact, the person tasked with overseeing the census — Secretary Ross — testified under oath during a congressional committee hearing last year that “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted” — making no mention of an individual’s legal status. 

In the case argued before the Supreme Court, Attorney General Nessel joined the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia. The attorneys general were joined by the cities of Central Falls, RI; Chicago, IL; Columbus, OH; New York, NY; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; Providence, RI; Seattle, WA; the city and county of San Francisco; Monterey County in California; Howard County in Maryland; Cameron, El Paso, and Hidalgo Counties in Texas; and the bipartisan U.S. Conference of Mayors.