Article I, § 2, Clause 3

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers…of 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.

Fourteenth Amendment, § 1, sentence 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

These are the sections of the US Constitution that govern the Census. As for the Fourteenth Amendment, I’ll simply note that Senator Lyman Trumbull and the 1866 Civil Rights Act drafters defined “subject to the jurisdiction” as “complete jurisdiction,” that is, full and complete loyalty to the U.S., per John Eastman’s razor-sharp scholarship. Illegals flying foreign flags in Los Angeles don’t qualify.

A census taker, 1940. Public domain.

The key here is that the Fourteenth Amendment made former slaves into full citizens. Chief Justice Roger Taney’s decision in Dred Scott v Sandford (1857), which held that, under the law, slaves weren’t “persons,” got thrown into the shredder.

But are aliens “persons” for the purpose of the Census? The left is adamant that they are. The right says they’re not.

In DC v. Heller (2008), the Supreme Court clearly stated that “the people” “unambiguously refers to all members of the political community.” Illegal aliens are, by definition, not members of the American political community. They are intruders. A burglar who breaks into your house does not become a member of your family. Illegal aliens aren’t part of our political family, either.

Late in his first term, Donald Trump attempted to get the Census Bureau to count only citizens. New York State challenged this, and in 2020, the Supreme Court said (Trump v. New York) that he had botched the process under the Administrative Procedures Act. Sorry, Charlie. You still must count all the aliens. But notice that the Court got its exercise by jumping far away from the real issue. Skilled in the sport of Constitutional Avoidance, the Court said Trump didn’t give enough “notice and comment” time before implementing its rule to only count citizens. In short, he didn’t say, “Mother, may I?” It was all about procedure. Because process was enough to let the Court make a decision, they never even asked if Trump was right on the “merits.” His constitutional argument didn’t matter.

It’s important to note that the Supreme Court has not considered the question of who should be counted, but it’s certain that that’s where it will end up. The three cases that might bear on it aren’t much help, either. United States v. Wong Kim Ark (1898) is the Left’s sacred cow, but it only covered the children of legal Chinese residents (which would seem to vitiate the left’s arguments entirely). Plyler v. Doe (1982) has non-binding dicta from a shaky “rational basis” test. Federation for American Immigration Reform v. Klutznick (1980) is a footnote from a district court, not a precedent.

In the first quote at the beginning, you saw that Congress gets to set the rules for the Census. 13 USC § 141 fills that bill. Its first paragraph defines the “decennial census” that we’re all familiar with. You get that form that asks how many people live in your house, how many toilets there are, and a whole lot of other information the government has no business asking about. The criteria for the count (paragraph (c)) are “established by the Secretary.” This requires that 60-day notice and comment period. But keep reading.

Paragraph (d) talks about a “mid-decade” census that you’ve probably never heard about. It’s done on the years ending in “5” and starts in April. That’s odd. Today’s date ends in a “5.” So, there’s a census going on this year. Unfortunately, “Information obtained in any mid-decade census shall not be used for apportionment of Representatives in Congress.” But! If the Secretary of Commerce wraps up the mid-decade census quickly, we can get a couple of things into the mix quickly and without fussing with the Senate’s filibuster rule.

First, the Secretary needs to propose a new rule that excludes non-citizens from the census. After sixty days, he makes it effective. While that two-month clock is running, he must prep for a new census. Yup. If, “the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, a report…” is to be submitted to Congress. Notice what the statute does not say.

Nothing in the Census statute says anything about not doing another census. Further, nothing in the statute says that the new “special census” can’t be used to reapportion the House of Representatives. That doesn’t mean that there won’t be lawsuits. There will be. And Trump might lose on the idea that the silence of the statute demands that only the decennial census is used for apportionment. But even if he loses, we win because it’s very likely that illegals will be kept out of the decennial census. And there’s where the rubber meets the road.

Lots of numbers get thrown around about how many illegals are in the US. Eleven million was the outdated number during Reagan’s presidency, but we still hear it. The more credible number is somewhere between thirty and forty million. That’s enough to seriously shift the number of Congressional seats for various states. Commiefornia would likely lose 3-5 seats, with most of them going to Florida and Texas. With five leaving the left side of the House, a three-seat majority becomes 13 seats, and RINOs can be reduced to bystanders. Dems will be reduced to shrill harpies.

A 2025 special census, excluding alien interlopers, could restore representation to citizens who actually pledge allegiance. This isn’t just a thought experiment—it’s a battle for America’s soul.

Ted Noel is a retired physician who posts on social media as Doctor Ted. His occasional Doctor Ted’s Prescription podcast is available on multiple podcast channels.