	Introduction

In the 2010 census, as in prior decennial censuses, the total population of the United States was counted, including U.S. citizens, lawfully present aliens, and unauthorized aliens. One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes (Title 13 of the U.S. Code ), or whether such action would require an amendment to the Constitution. The Constitution requires a decennial census to determine the "actual Enumeration" of the "whole number of persons" in the United States. The Fairness in Representation Act ( H.R. An amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 ( S.Amdt. 2644 to H.R. 2847 ) would have cut off funding for the census unless the census form included questions on U.S. citizenship and immigration status. The amendment was subsequently ruled to be non-germane. 11 proposed an amendment to the Constitution so that only U.S. citizens would be counted in the apportionment calculation. On the other side of the issue, the Every Person Counts Act ( H.R. 3855 ) would have prohibited the Census Bureau from asking about U.S. citizenship or immigration status. If so, then it would appear that any exclusion would have to be done by constitutional amendment. As mentioned above, it appears some are concerned that aliens, particularly those individuals in the country unlawfully, are included in the data used to apportion House seats among the states and determine voting districts within the states. Data for Apportionment Purposes

Constitutional issues could arise if aliens were excluded by statute from the census count for purposes of apportioning House seats among the states. The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine voting districts within the states. The term "whole number of persons" appears broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire population be included in the apportionment calculation. As such, a constitutional amendment, such as that found in H.J.Res. 11 in the 111 th Congress, would likely be necessary in order to exclude any individuals from the census count for the purpose of apportioning House seats. Selected Legislation to Exclude Aliens from the Census

From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion the House seats among the states. Such legislation would have either amended the Census Clause of the Constitution or enacted or amended federal census statutes.
In the 2010 decennial census, the Census Bureau counted the total population of the United States. This included, as in previous censuses, all U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have suggested excluding aliens, particularly those who are in the country unlawfully, from the census count, in part so that they would not be included in the data used to apportion House seats among the states and determine voting districts within them.
One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes, or whether such action would require an amendment to the Constitution. The Constitution requires a decennial census to determine the "actual enumeration" of the "whole number of persons" in the United States. The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine intrastate districts. It appears the term "whole number of persons" is broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire population be included in the apportionment calculation. As such, it appears a constitutional amendment would be necessary to exclude any individuals from the census count for the purpose of apportioning House seats.
From time to time, Congress has considered legislation that would exclude all aliens or prevent only unauthorized aliens from being included in the census for purposes of apportioning House seats among the states. Such legislation would have either amended the Census Clause of the Constitution or enacted or amended federal census statutes. Although such legislation has yet to be introduced in the 112th Congress, in the 111th Congress, legislation was introduced that used both approaches. The Fairness in Representation Act would have statutorily excluded aliens from the population count for apportionment purposes (H.R. 3797 and S. 1688). Under the above analysis, it would not appear to be constitutionally sufficient for Congress to amend the federal census statutes in such manner. Meanwhile, H.J.Res. 11 would take the other approach and amend the Constitution so that only U.S. citizens would be counted in the apportionment calculation.
Other legislation in the 111th Congress would not have raised the same constitutional issues since it would not appear to require the exclusion of any individuals for apportionment purposes. An amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 (S.Amdt. 2644 to H.R. 2847), would have cut off funding for the census unless the census form included questions regarding citizenship and immigration status. The amendment was subsequently ruled to be non-germane. On the other side of the issue, the Every Person Counts Act (H.R. 3855) would have prohibited the Census Bureau from asking about U.S. citizenship or immigration status.