Dem
54
GOP
46
The third clause of Art. I, Sec. 2 of the Constitution begins as follows (emphasis ours):
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined 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.
The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
The Fourteenth Amendment also addresses apportionment. Sec. 2 begins as follows.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
Note that both refer to persons, not citizens. Donald Trump wants to change that and have the census count only citizens (and if he is forced to, green card holders). But there are many noncitizen persons in the U.S. who are legal (holders of H-1B visas, foreign students, businessmen, refugees, asylum seekers, and others). And of course, there are persons in the U.S. illegally. All of these noncitizens have always been counted in the past because the Constitution says persons. The founders knew the difference between an inhabitant and a citizen and used the word "citizen" when they meant citizen, for example, members of Congress must be citizens and the president must be a natural-born citizen. It has never been tested if a baby delivered by a Caesarian section is considered natural born. Shakespeare, for one, didn't think so.
The change that Trump wants would force a dramatic shift of political power from blue states (which, by and large, have the most noncitizens) to red states by moving House seats and electoral votes from blue states to red states. Over 300 federal programs allocate funds based on population, as determined by the census. So Trump wants to shift power and money to the red states. He also wants to eliminate the questions abut race and ethnicity from the census, to make minorities less visible. These changes are a real threat to democracy.
The 2030 census is scheduled to happen on April 1, 2030. All persons in the U.S. on that date should be enumerated. Plans and forms for it are being formulated already. If Democrats capture Congress on Tuesday, they could try to block Trump's plans. Congress doesn't have direct authority over the census; Secretary of Commerce Howard Lutnick does. However, it could pass laws specifically stating that all noncitizens, legal or otherwise, must be included in the count or it is not valid and that there must be questions about race and ethnicity.
There is no way on God's green earth that a stand-alone bill with these directions could survive a Senate filibuster. However, Democrats could add these provisions to a must-pass bill, like the budget or the defense appropriations bill by simple majority vote and dare the Republicans to torpedo the bills, with all the publicity and complications that would bring. We have been down that road before. In 2024, Sen. Bill Hagerty (R-TN) made an attempt to add an amendment to an omnibus spending bill to specifically exclude noncitizens from the census but the votes weren't there.
Sen. Andy Kim (D-NJ) is the ranking member on the Senate Homeland Security and Governmental Affairs census subcommittee, and he is on top of this. He recently said: "The census is enshrined in our Constitution and not up for political debate." If the Democrats take the Senate, he will become chairman of the subcommittee and use his power to push back on Trump. Also incensed by this proposal is Rep. Robert Garcia (D-CA), who is very likely to become chairman of the House Oversight Committee, which has broad powers to investigate almost anything the chairman wants to investigate.
If Congress doesn't overrule Trump's plans by laws, there will surely be a lawsuit and will be up to the court to determine what a person is. (V)