Apportionment, Allegiance, and Birthright Citizenship

Abstract Trump v. New York appears to present the Supreme Court with a simple question of statutory construction: do federal statutes allow the President to exclude unlawfully resident aliens from the apportionment of seats in the House of Representatives? The President claims that they do. A three-judge District Court ruled that they do not. However, many arguments for the President go further and assert that the Constitution supports or even compels the exclusion. Some are historical, like the argument that no federal law restricted immigration before 1875, or that apportionment historically included aliens only because they were on a path to citizenship. Others assert that unlawfully present aliens should not be counted because they are outside the allegiance, jurisdiction, and polity of the United States. Some even utilize discredited theories that reject birthright citizenship for U.S.-born children of aliens. This Article rebuts those arguments and shows constitutional history supporting inclusion in the decennial apportionment. It demonstrates that the arguments ignore early federal, state, and colonial restrictions on immigration and naturalization and are inconsistent with fundamental constitutional principles governing apportionment, liability for treason, and birthright citizenship. Because these arguments reach far beyond the apportionment issue and threaten to surreptitiously alter longstanding constitutional law, the Court should disregard them and decide the case on statutory rather than constitutional grounds. If instead the Court addresses these arguments, it should reject them and reaffirm longstanding principles governing apportionment, liability for treason, and birthright citizenship.