Do undocumented immigrants count as people?

Anyone watching as Immigration and Customs Enforcement (ICE) agents increasingly bypass due process to detain and deport unauthorised immigrants might assume the Trump administration’s answer is a resounding “no”. Now, regardless of deportation policies, the approximately 11 million unauthorised immigrants in the United States could soon disappear, statistically at least, if Republicans have their way.

President Trump recently instructed the US Department of Commerce to prepare for a new census that excludes undocumented immigrants. This marks the latest and boldest attempt by Trump and his congressional allies to alter how the census accounts for unauthorised immigrants. Although not explicitly stated, Trump may be trying to push this off-cycle census through ahead of the 2028 presidential election or even before next year’s midterms, which he appears intent on influencing.

Assuming Trump was being literal in his social media declaration that “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS,” millions could effectively vanish from the official population count. If this incomplete census were used for congressional apportionment, it would reduce representation in Congress and the Electoral College for states with large numbers of unauthorised immigrants.

The immediate partisan impact is unclear. According to the Pew Research Center, if non-citizens had been excluded before the 2020 election, California, Florida and Texas would each have lost one congressional seat and Electoral College vote, while Alabama, Minnesota and Ohio would each have gained one. Political gerrymandering would likely shape who benefits from redistricting. Republicans are already aggressively redrawing maps in states like Texas, with possible retaliatory moves in California and other Democrat-led states. Beyond electoral shifts, the broader goal appears to be marginalising undocumented people and punishing “sanctuary” jurisdictions. This reinforces the Republican narrative that Democrats deliberately tolerate illegal immigration for political gain.

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Legally, how to count unauthorised immigrants depends on interpreting the Constitution, the framers’ intent and the scope of executive authority in conducting the census. Non-citizens have historically been included in the count, and the Supreme Court has never ruled directly on excluding them. However, with a conservative supermajority on the court, there is a real chance the justices could allow it – either by reinterpreting the Constitution’s language or deferring to the executive branch.

Even if Trump fails to push through a new census, his administration could still suppress the count by other means. During his first term, he tried to add a citizenship question to the 2020 census. The Census Bureau stopped collecting this data from all respondents in 1950 and removed the question entirely by 2000, instead gathering it through separate surveys such as the American Community Survey. Many feared its return would deter participation from undocumented, and even legal, immigrants, leading to an undercount. The Supreme Court blocked the effort in 2019, citing insufficient justification. But it left the door open to future attempts with more credible rationales.

Socially, the question of how to count non-citizens recalls earlier and sometimes shameful practices in the United States. For much of its early history, significant groups were denied full recognition in the political system despite living in the country. The Constitution’s original enumeration formula stated that state populations would be calculated “by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.”

Slave and free states struck the infamous “three-fifths” compromise, counting enslaved people as three-fifths of a person for congressional and Electoral College apportionment. Meanwhile, “Indians not taxed” were excluded altogether, as most Native Americans were not considered US citizens despite residing within the country’s borders. They were instead seen as members of sovereign nations – such as the Cherokee, Creek or Iroquois – even as their land, rights and dignity were stripped away. Only with the Indian Citizenship Act of 1924 were Native Americans granted birthright citizenship and formally included in the population count.

These examples show two marginalised non-citizen groups, enslaved Black people and Indigenous Americans, treated in opposite ways: one partially counted, the other excluded. With history offering no clear precedent, today’s debate raises valid questions about how non-citizens, including the undocumented, should be represented. One view holds that because only citizens vote, non-citizens should not affect apportionment. The opposing view argues that excluding undocumented immigrants worsens their vulnerability and denies their very existence, even as government policies directly affect their lives.

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Unauthorised immigrants both use and support public systems. While they are barred from most federal benefits such as Social Security and Medicare, they still access emergency healthcare, school meal programmes and limited housing support. They also factor into education and policing budgets in the communities where they live. At the federal level, immigration policy disproportionately affects states where undocumented residents make up a larger share of the population. At the state level, policies must be shaped with their presence in mind. For example, California now offers food assistance to all elderly residents regardless of immigration status.

Undocumented immigrants also contribute to public finances, paying nearly $100bn annually in federal, state and local taxes. This includes more than $30bn for programmes they largely cannot use, such as Social Security, Medicare and unemployment insurance. In 40 of 50 states, they pay higher state and local tax rates than the wealthiest 1 percent. States’ economic contributions to the federal budget are directly influenced by these residents. It makes sense, therefore, to acknowledge them through accurate enumeration.

The Trump administration is instead enforcing a skewed, incomplete and politically motivated interpretation of its constitutional duties regarding census-taking and apportionment. This approach could also affect other debates with far-reaching implications. The Department of Justice is urging the Supreme Court to fast-track a ruling on Trump’s challenge to birthright citizenship. This is another area where the Constitution appears clear. The 14th Amendment affirms that anyone born in the US is a citizen, with few exceptions, such as the children of diplomats. Trump is also seeking to expand the grounds for revoking naturalised citizenship, a penalty currently applied only in rare cases that usually involve fraud.

A narrower definition of who “counts” in the census could fuel arguments for a narrower definition of who counts as a citizen. Similarly, a policy of excluding non-citizens could encourage efforts to strip citizenship from naturalised or US-born residents in order to exclude them as well.

The presence of millions of undocumented immigrants reflects an immigration system that has failed under both Democratic and Republican administrations. Until meaningful reform is enacted, pretending these individuals do not exist is a misguided, politicised and harmful response to the reality of their lives within US borders, regardless of how they arrived.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.