The state of Louisiana filed an original action in the Supreme Court against the Secretary of Commerce of the United States, encompassing the United States Census Bureau, whose responsibility includes conducting the decennial census used for apportionment of seats in the House of Representatives among the States. Louisiana claimed it lost a seat in the House because illegal aliens were included in the population and used for apportionment. States with large numbers of illegal aliens gained a total of five seats, while other states lost five seats.
The Census Bureau maintained that it “is required by the U.S. Constitution to count everyone living in this country, regardless of immigration or citizenship status.” CLDEF’s amicus curiae brief explained why the Census Bureau claim was demonstrably untrue.
First, CLDEF’s brief argued that the U.S. Constitution did not create the Census Bureau, or even the Department of Commerce, of which the Census Bureau is a part. Thus, the Constitution vests no power directly in the Census Bureau. Rather, the Census Bureau is a creature of the United States Congress. As such, its powers and duties are determined by statute, not by the Constitution. Even then, the law establishing the Census Bureau must itself be “made in pursuance” of the Constitution in order for it to be the law of the land. See U.S. Constitution, Art. VI, Cl. 2.
Further, the Constitution does not require, or even authorize, a census “count [of] everyone living in this country.” Rather, Article I, Section 1, Clause 3, as amended by Section 2 of the 14th Amendment, authorizes a targeted decennial census of the “respective numbers” of the People of the several States, not a wholesale count of the numbers of persons found “living” in the United States. Only by such a tailored count can the constitutionally authorized decennial census serve the purpose for which that census has been required — the apportionment of representation of the people of the several states in the U.S. House of Representatives.
Lastly, it is manifestly untrue that the decennial census ordained by the Constitution is to be taken without regard to a person’s “immigration or citizenship status.” The decennial census is conducted for the apportionment of representation in the House of Representatives, the members of which are “chosen every second Year by the People of the several States.” The first sentence of the 14th Amendment establishes a symbiotic relationship between a person’s United States citizenship and that person’s State citizenship. Thus, whether a person is part of the People of a State is largely, if not exclusively, dictated by a person’s “immigration or citizenship status.” Any census that ignores that connection is fatally flawed.
On March 19, 2012, the Supreme Court rejected Louisiana’s complaint.
CLDEF Amicus Curiae Brief in Support of Plaintiffs (January 13, 2012)