Apportionment, Allegiance, and Birthright Citizenship
| Author | John Vlahoplus |
| Position | B.A., Washington & Lee University; J.D., Harvard Law School; D.Phil., Oxford University; Member, New York State Bar |
| Pages | 107-118 |
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
principles governing apportionment, liability for treason, and birthright citizenship.
Constitutional Law, Immigration, Treason, Census, Apportionment, Citizenship
© 2021 John Vlahoplus, published by Sciendo.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
A. Naturalization ...............................................................................
B. Immigration Restrictions ..............................................................
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