The Constitution says that for reallocating House seats, the census must count the "whole number of persons" in each state. But President Trump wants to subtract undocumented immigrants.

Transcript

LULU GARCIA-NAVARRO, HOST:

The census counts every person in the United States every 10 years, regardless of their immigration status. The Trump administration is trying to change that. Today it will argue before the Supreme Court that undocumented immigrants should not be included in the count, and that could impact how new congressional districts are drawn in 2021. Here is NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: 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. Margo Anderson, perhaps the leading census historian, says the census was to be a reflection of we the people in the preamble to the Constitution.

MARGO ANDERSON: So then the question becomes, OK, how do we measure the people? Should we do voters? Should we do property owners? And should we do this? Should we do that? And they decided, look; just let's count everybody and be done with it.

TOTENBERG: The Constitution's so-called Great Compromise was that every state would get two senators, no matter what the state's population, and the House of Representatives and Electoral College would be apportioned to represent, quote, "the whole number of persons counted in the census of each state." There were only two exceptions. Native Americans living on tribal lands were deemed to be part of a different sovereign nation, and the enslaved population in the South was counted, but for only three-fifths of their number. That changed after the Civil War, when the 14th Amendment counted the former slaves as whole persons, too.

Indeed, 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. In July, President Trump issued a memorandum ordering the Census Bureau to send him two sets of numbers. One set was for the whole number of persons in each state and the second set, for apportionment of the number of congressional seats in each state and the Electoral College, was to subtract the number of undocumented immigrants from the total population numbers. As the memorandum candidly admitted, that might mean that California, for instance, would lose two congressional seats.

DALE HO: That's illegal because the Constitution and federal statutes require the House to be divvied up according to the census. Now they say they're changing the census itself.

TOTENBERG: That's Dale Ho of the ACLU, who represents a coalition of immigrant rights groups. They and 22 states led by New York are challenging the president's order.

HO: The decision that the founders made, that the framers of the 14th Amendment made was that states get representation in Congress based on the number of people that they are responsible for and have to represent. And it doesn't matter whether those people are voters or not, if they're citizens or not or what their immigration status is or not.

TOTENBERG: And he adds that one reason for linking apportionment to the census was to set an objective standard and prevent political manipulation. The Trump administration, however, contends that under the federal law governing the census, the president has, quote, "unfettered discretion as to what data will be used when it comes to who counts for purposes of apportionment." Interestingly, the usual red-state coalition that in other cases has supported the administration in the Supreme Court is not present in this case. Texas, Florida, Arizona and other Republican-dominated states are missing in action in this case because they might well lose seats if Trump prevails.

So far, the president has lost his argument in three lower courts, with both Democratic- and Republican-appointed judges ruling against him unanimously. Just 10 states accounting for a mere 52 congressional seats and Electoral College votes are siding with the administration. Among them is Alabama, which would likely lose a seat if the usual procedures in the census are followed. Alabama's solicitor general, Edmund LaCour, echoes the themes in the Trump administration's argument. He maintains that the Constitution's mandate to count the whole number of persons for the census actually meant inhabitants. And he argues that the Founding Fathers would have viewed inhabitants as people who have permission from the sovereign to be here and who have publicly stated they intend to remain here.

EDMUND LACOUR: Our argument is that illegal aliens do not meet either of those requirements. They are here not by permission of the federal government. Therefore, they are not inhabitants as the framers would have understood it when deciding how to divide up federal power among the states.

TOTENBERG: Countering that argument, Dale Ho notes that more than 60% of undocumented immigrants have lived in this country for at least 10 years, with the median being 15 years. And he points to the statute enacted in 1929 after a gridlocked Congress failed to agree on how to proceed. The 1929 law created an automatic reapportionment system based on the census under which the president is to report total population numbers for each state to Congress for a certification. And that's where this case runs into some extra wrinkles. Because of the pandemic, the Census Bureau has already indicated it likely will not be able to meet the usual December 31 deadline for reporting its figures, nor has the bureau been able to ascertain what portion of those people living in the United States are not here legally. President Trump, by law, has just 10 days to carry out his ministerial duty to convey to Congress how many congressional seats each state is supposed to get. So Trump may not be able to send reliable figures to the House for certification by the time he leaves office. And if he does send figures that do not include all residents counted by the census, the clerk of the House may well refuse to certify those figures, kicking the census back to the new Biden administration to complete for reapportionment.

Nina Totenberg, NPR News, Washington.

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