United States of America

19 November 2020

Are undocumented people considered as "persons"? What does the Trump administration think about this

Freshfields team files amicus brief in Trump v. New York, supporting inclusion of all people in congressional apportionment.

A Freshfields team comprising partner Aaron Marcu, special counsel Scott Eisman, and associates Elena Hadjimichael, Christian Vandergeest, and Robert Barton has filed an amicus brief on behalf of Professor Ilya Somin and Professor Sanford Levinson in Trump v. New York, a pending U.S. Supreme Court case over whether the federal government may exclude undocumented immigrants from the congressional apportionment.

The Constitution requires that congressional representatives be apportioned among the states based on the number of “persons” in each state. The Trump Administration has taken the position that undocumented people are not “persons” within the meaning of that provision of the Constitution. The likely result would be that states with large populations of undocumented people would lose congressional representation. The Freshfields brief argues that the Constitution forbids such a result, citing a wealth of historical and legal sources to support that view. As advocated by Professors Somin and Levinson, prominent constitutional scholars, the Constitution’s plain text and original meaning require counting all people who live in a state, regardless of immigration status.

*This article was provided by Freshfields

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