Yes, it would, and no, he's not.
Under the Constitution’s text, original meaning, and 230+ years of practice, excluding people from the apportionment count solely because they lack legal status or a green card is almost certainly unconstitutional.
The proposal would need a constitutional amendment, not an agency rule.
The relevant clauses are Article I, Section 2 and the 14th Amendment, Section 2. Both require apportionment of House seats based on “the whole number of persons in each State,” excluding only “Indians not taxed.”
The word chosen was “persons,” not “citizens,” “voters,” or “lawful residents.”
The 14th Amendment’s framers considered and rejected limiting the count to citizens. Representative John Bingham stated during the debates that “the entire immigrant population of this country is included in the basis of representation.”
Why the constitutional arguments against it are strong
- Text is broad. “Persons” was a capacious term at the Founding and in 1868. The only explicit exclusion is “Indians not taxed.” If the Framers meant to exclude foreigners or people lacking allegiance, they would not have needed that carve-out.
- Historical practice is uniform. Every census since 1790 has counted residents regardless of citizenship or legal status. Temporary visitors and diplomats have sometimes been treated differently as a practical matter of “usual residence,” but legal status itself has never been the cutoff for people living in the country. The Census Bureau and Department of Justice under both parties have long taken this view.
- Supreme Court signals. In Evenwel v. Abbott (2016) the Court held that total population—including non-citizens—is the constitutional baseline for apportionment; representatives serve all residents, not just eligible voters. In Plyler v. Doe undocumented immigrants were held to be “persons” within a state’s jurisdiction. In 2020 (Trump v. New York) the Court dismissed a challenge to the first-term memo on ripeness grounds and did not reach the merits; the three liberal justices would have struck it down as unlawful. Lower courts that did reach the merits found the memo violated both the Constitution and the Census Act.
- Congressional Research Service and prior executive-branch opinions have concluded that excluding unauthorized aliens from the apportionment base would require a constitutional amendment. Congress has repeatedly considered such bills and they have not become law.
The administration’s counter-argument—that the Executive has discretion under
Franklin v. Massachusetts to define “inhabitant” and that illegal presence severs allegiance—has been advanced before and rejected by most constitutional scholars and prior administrations. It treats a policy preference as an interpretation of “persons.”
tucson.com
nypost.com
thecensusproject.org
govfacts.org