## Summary: Trump's Proposed Census Changes Face Constitutional Challenges **News Title:** Is Donald Trump’s new census constitutional? Experts weigh in **Report Provider:** Newsweek **Author:** Khaleda Rahman **Publication Date:** August 13, 2025 --- ### Executive Summary Former President Donald Trump has instructed the Department of Commerce to initiate changes to the U.S. Census Bureau's data collection methods, specifically aiming to **exclude immigrants residing in the United States illegally** from the decennial count. This directive, announced via Truth Social, proposes 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." However, legal experts consulted by Newsweek argue that such an exclusion would **violate the U.S. Constitution**, particularly the Fourteenth Amendment. While any efforts to alter census methodology are expected to face legal challenges, Trump's directive carries the potential to significantly shift the balance of political power in the country. --- ### Key Findings and Expert Opinions * **Constitutional Violation:** Multiple constitutional law experts, including Jill Hasday (University of Minnesota Law School), Evan Bernick (Northern Illinois University College of Law), and Gerard Magliocca (Indiana University's law school), assert that excluding undocumented immigrants from the census would be unconstitutional. * **Fourteenth Amendment Interpretation:** Experts cite Section 2 of the Fourteenth Amendment, which mandates the apportionment of congressional seats based on "the whole number of persons in each State." They emphasize that the text makes no distinction between citizens and non-citizens, or between lawfully and unlawfully present non-citizens. * **Historical Precedent:** The Constitution's apportionment clauses (Article I, Section 2, and Fourteenth Amendment, Section 2) have historically been interpreted to include all "persons" within a state, regardless of their immigration status. * **Sole Exception:** The only exception mentioned in the Fourteenth Amendment is for "Indians not taxed," which experts explain was due to Native nations generally not being governed by U.S. law on Tribal lands. This exception is deemed inapplicable to undocumented immigrants, who are subject to U.S. laws and taxation. * **Executive Branch Authority:** Experts contend that the executive branch does not possess the authority to create new exceptions to constitutional rules for policy reasons. * **Inclusion of Prisoners:** Magliocca highlights that even individuals incarcerated, including those on death row, are included in the census, underscoring the principle of counting all persons present within a state. --- ### Past Legal Challenges and Current Implications * **2020 Census Effort:** The Supreme Court previously deferred ruling on a challenge to Trump's 2020 attempt to exclude undocumented immigrants from apportionment numbers. While lower courts had deemed the plan illegal, the Supreme Court dismissed the case on technical grounds, stating the claims were "not suitable for adjudication at this time." * **Dissenting Opinions:** The Court's three liberal justices dissented, arguing that the exclusion was unlawful based on the plain meaning of statutes, historical practice, and uniform interpretations across government branches. * **Political Power Shift:** The exclusion of undocumented immigrants from the census could lead to a redistribution of congressional seats and Electoral College votes, potentially benefiting states with fewer undocumented residents and disadvantaging those with larger undocumented populations. This could significantly alter the political landscape. --- ### Trump's Stated Rationale Trump's directive on Truth Social suggests a desire for a census based on "modern day facts and figures" and insights from the 2024 Presidential Election, with a clear intent to exclude individuals present in the country illegally. --- **Note:** This summary is based on the provided news article from Newsweek, published on August 13, 2025. The article presents expert opinions on the constitutionality of Donald Trump's proposed changes to the U.S. Census.
Is Donald Trump’s new census constitutional? Experts weigh in
Read original at Newsweek →President Donald Trump is looking to change the way the U.S. Census Bureau collects data, wanting to exclude immigrants who are in the United States illegally.But several experts told Newsweek that excluding people living in the country without legal status from the head count used to allocate congressional seats among the states and determine how federal funding is distributed would run afoul of the U.
S. Constitution.Trump wrote on Truth Social last week that he had instructed the Department of Commerce to have the Census Bureau start 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."
He added: "People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS."Though any efforts to change how the census is conducted are sure to face legal challenges, Trump's directive threatens to shift the balance of political power in the country.Is Donald Trump's New Census Constitutional?
Newsweek Illustration/Getty What Does The Constitution Say?Experts say excluding undocumented immigrants from the census would violate the Fourteenth Amendment, which states that "the whole number of persons in each state" should be counted for the numbers used for apportionment—the process of allocating congressional seats and Electoral College votes among the states based on population."
Excluding undocumented immigrants from the United States Census would be unconstitutional," Jill Hasday, a professor at the University of Minnesota Law School and expert on constitutional law, told Newsweek."Section 2 of the Fourteenth Amendment provides that seats in the United States House of Representatives 'shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.'
"Evan Bernick, an associate professor at Northern Illinois University College of Law who has authored a book on the Fourteenth Amendment, told Newsweek that "in Article I, Section 2, and then again in Section 2 of the Fourteenth Amendment, the Constitution requires the federal government to apportion congressional seats 'among the several States' based on the number of 'Persons' in each State."
He said "neither text draws any distinction between people and citizens, much less citizens and lawfully present noncitizens, on the one hand, and unlawfully present noncitizens, on the other."Gerard Magliocca, a professor at Indiana University's law school who has authored five books on constitutional law, agreed."
Persons who are here illegally are still persons," Magliocca told Newsweek. "Thus, they must be counted in the Census."Bernick said the only exception in the Fourteenth Amendment was for "Indians not taxed," explaining that the reason for this was "citizens of Native nations were generally not governed by U.
S. law on Tribal land at all."But this "is not true of unlawfully present noncitizens today, who are taxed and governed by U.S. law," he said."There are no other exceptions. And the executive branch does not have the power to create new exceptions to constitutional rules for contemporary policy reasons."
Federal courts have repeatedly supported the interpretation that the census should include everyone in the country regardless of their legal status.But the Supreme Court put off ruling on a challenge to Trump's 2020 effort to to exclude undocumented immigrants from the numbers used for apportioning congressional seats.
Lower courts had ruled the plan illegal after states, cities and organizations sued, but the high court's conservative majority threw out the case on technical grounds."We express no view on the merits of the constitutional and related statutory claims presented," the court's conservative majority said in an unsigned opinion.
"We hold only that they are not suitable for adjudication at this time."The court's three liberal justices dissented, saying they would have ruled the plan was unlawful."The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status," Justice Stephen Breyer wrote in a dissent, joined by Justices Elena Kagan and Sonia Sotomayor."
The Government's effort to remove them from the apportionment base is unlawful, and I believe this Court should say so."Magliocca added that it was worth noting that prisoners are also included in the census."Even the worst murderers on death row," he said. "There are no exceptions based on who you are or what you did so long as you are here."
Full comments belowGerard Magliocca, a professor at Indiana University's law school"The proposal is unconstitutional. Section 2 of the Fourteenth Amendment requires 'counting the whole number of persons in each State, excluding Indians not taxed' for purposes of reapportioning the House. Persons who are here illegally are still persons.
Thus, they must be counted in the Census."It's worth adding that all prisoners within the United States are counted in the Census. Even the worst murderers on death row. There are no exceptions based on who you are or what you did so long as you are here."Evan Bernick, an associate professor at Northern Illinois University College of Law"It is unconstitutional.
In Article I, Section 2, and then again in Section 2 of the Fourteenth Amendment, the Constitution requires the federal government to apportion congressional seats 'among the several States' based on the number of 'Persons' in each State. Neither text draws any distinction between people and citizens, much less citizens and lawfully present noncitizens, on the one hand, and unlawfully present noncitizens, on the other."
Both texts contain a single exception for 'Indians not taxed,' and in both cases the historical reason for this exception was that citizens of Native nations were generally not governed by U.S. law on Tribal land at all. This is not true of unlawfully present noncitizens today, who are taxed and governed by U.
S. law. There are no other exceptions. And the executive branch does not have the power to create new exceptions to constitutional rules for contemporary policy reasons."Jill Hasday, a professor at the University of Minnesota Law School"Excluding undocumented immigrants from the United States Census would be unconstitutional.
Section 2 of the Fourteenth Amendment provides that seats in the United States House of Representatives 'shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.' This means that the United States Census must count 'the whole number of persons in each State' so each state receives the correct number of House seats."
