Did Founding Framers intend for the Census to count Illegal aliens? Courts could soon decide

Historical evidence suggests the framers did not intend for illegal immigrants to be counted for apportionment. A new lawsuit filed by the State of Missouri urges the Census Bureau to return to that original understanding.

The Constitution’s text 

Article I, Section 2, Clause 3 of the U.S. Constitution requires an “actual enumeration” of the population for purposes of congressional representation. The Fourteenth Amendment later clarified that this enumeration must count the “whole number of persons” residing in each state.

The Constitution, however, has never been interpreted to require counting every individual physically present within a state on census day. For example, no cases have contended that the Census Bureau must count temporary visitors, such as foreign tourists or short-term travelers. 

While there is broad agreement that the phrase “whole number of persons” does not require a literal counting of every individual physically present in a state at a given moment, there is disagreement over whether it requires the Census Bureau to include illegal immigrants.

For much of American history, whether illegal immigrants should be included in the census was a purely academic question. For nearly a century after the nation’s founding, there were few meaningful federal restrictions on immigration. Congress did not enact the first statute excluding certain classes of immigrants until 1875. Numerical limits on immigration were not imposed until the Immigration Act of 1921, and unauthorized entry across the border was not criminalized until 1929. 

Because lawful immigration was relatively accessible, illegal immigration remained limited for much of the nation’s early history.

The Carter administration changes history's course

The federal government began seriously grappling with the treatment of illegal immigrants in the census in the late twentieth century. In the lead-up to the 1980 census, the issue received sustained attention for the first time, and the Carter administration ultimately determined that illegal aliens should be included in census counts. That decision marked a significant policy shift rather than the continuation of a long-standing constitutional practice.

After the 1980 census, the Census Bureau released figures showing that New York and California likely gained additional representatives in Congress — while Georgia and Indiana each lost a representative — because of “the over 2 million undocumented aliens” included in the 1980 census.

Since the 1980 census, the Census Bureau has counted illegal aliens as part of the decennial census and included them in the population figures used for congressional apportionment. This approach has remained in place across multiple administrations of both parties.

For now, the Census Bureau’s website states that that it will continue to count “unauthorized immigrants” in the “resident population counts” for the decennial census and congressional apportionment. However, that policy is now facing renewed legal scrutiny.

Missouri takes the issue to federal court

In a lawsuit filed against the Census Bureau last week, the State of Missouri and other plaintiffs argue that counting illegal aliens for apportionment purposes violates the Constitution and is unlawful under the Administrative Procedure Act. 

The state contends that the executive branch lacks authority to redefine the population used for apportionment without clear authorization from Congress and that the Founders did not intend for individuals unlawfully present in the country to influence the distribution of political representation. Missouri’s solicitor general, Louis Capozzi, said precedent backs his office’s lawsuit, citing a 1992 U.S. Supreme Court case, Franklin v. Massachusetts, concerning how the census should count people overseas.

“Our position is that illegal aliens and temporary foreign visitors are not and cannot be deemed domiciled in the United States,” Capozzi told NPR. “Citizens and lawful permanent residents are domiciled, and they can be counted.”

The case raises fundamental questions about constitutional text, historical practice, executive discretion, and the proper balance between population measurement and political representation—questions that could ultimately require resolution by the Supreme Court.

The case also aligns with a message President Trump has been advancing publicly. Last year the president posted on social media: “I have instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024,” the president said in the post. 

“People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS. Thank you for your attention to this matter!” he added.

What did the framers really intend?

Historical evidence strongly suggests that the framers of the Constitution did not intend for illegal aliens to be counted for purposes of congressional apportionment. Early drafts of the Constitution’s Enumeration Clause—including versions approved by the Constitutional Convention—used the term “inhabitants” rather than “persons.” Although the final text omitted that word, contemporaneous sources indicate the change was understood as stylistic, not substantive.

The Federalist Papers, which are not legal precedent but examined as "framers' intent" repeatedly describe the census as a count of a state’s “inhabitants,” reinforcing the understanding that apportionment was tied to a settled population rather than mere physical presence.

The First Congress shared this understanding. The nation’s first census statute—formally titled “An Act providing for the enumeration of the Inhabitants of the United States”—made clear that a person was considered part of a state’s census population only if he was a “usual resident” or “inhabitant” of that state. Mere physical presence was insufficient.

This understanding persisted for decades. Every census statute enacted prior to the Fourteenth Amendment’s ratification directed the enumeration of the “inhabitants” of the United States, reflecting a continuous and consistent interpretation of the Constitution’s census requirement.

The framers’ and early Congresses’ repeated use of the term “inhabitant” is significant. In eighteenth- and nineteenth-century legal usage, the term was closely associated with the concept of domicile—a fixed, lawful, and enduring residence. That concept stands in sharp contrast to transient presence or unlawful entry, suggesting that the Constitution’s original understanding of apportionment was tied to lawful, settled membership in a political community.

Will the Supreme Court decide?

Missouri’s lawsuit may finally force a definitive answer. If the case reaches the Supreme Court, the justices may be asked to determine whether the Constitution permits counting illegal aliens for purposes of apportionment. Missouri has asked for expedited resolution of its case.