In the 2010 census, as in prior decennial censuses, the total population of the United States was counted, including U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have asked whether aliens, particularly those in the country unlawfully, should be excluded from the census count. It appears one concern is that these individuals are included in the data used to apportion House seats among the states and determine voting districts within them, which some perceive as unfair to states or districts with small alien populations. One question raised by this idea is whether the exclusion of aliens could be done by amending the federal census statutes (Title 13 of the U.S. Code ), or whether such action would require an amendment to the Constitution. The Constitution requires a decennial census to determine the "actual Enumeration" of the "whole number of persons" in the United States. The data must be used to apportion the number of House seats among the states. While not required by the Constitution, the data are used for other purposes as well, including by the states to determine voting districts within a state. The Constitution expressly vests Congress with the authority to conduct the census "in such Manner as they shall by Law direct." Congress has delegated this responsibility to the Secretary of Commerce and, within the Department of Commerce, to the Bureau of the Census. The Census Bureau counts the total resident population of the states, with each individual counted at his or her "usual residence." This includes both citizens and aliens. There is no legal requirement that the Census Bureau collect information regarding citizenship status. The 2010 census form sent to all households did not include questions regarding citizenship status or place of birth. The Commerce Secretary has used his discretion to ask for such information on the American Community Survey (ACS), which is sent monthly to a sampling of households. Historically, questions regarding citizenship status have not been consistently included in the census population surveys. At least two early censuses (1820 and 1830) included a category for foreigners not naturalized, and later censuses asked about place of birth. In modern times, the census questionnaire sent to all households has not included such questions, although the questionnaire sent to a sampling of households (the "long form," which has been replaced by the ACS) has asked for such information. From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion House seats among the states. A discussion of selected legislation from Congresses before the 112 th and 111 th Congresses is included in the Appendix . As of the date of this report, no legislation regarding the exclusion of aliens from the census data for House apportionment has been introduced in the 112 th Congress. Since the data for the House apportionment among the states had to be submitted to Congress and certified by December 31, 2010, legislation addressing the most recent apportionment would be moot. However, in the event that the ongoing issue of the presence of unauthorized aliens in the United States remains unresolved by congressional legislation or executive agency action, the issue of whether to exclude unauthorized aliens from census data for apportionment may arise with regard to guidelines for future decennial censuses and apportionments. Legislation from the 111 th may provide models for future legislation. In the 111 th Congress, several bills were introduced that would have amended the federal census statutes to explicitly address the treatment of unauthorized aliens. The Fairness in Representation Act ( H.R. 3797 and S. 1688 ) would have required the Commerce Secretary to include some means (e.g., a checkbox) for respondents to indicate they are U.S. citizens or lawfully present in the country on the census forms sent to all households. Additionally, the Commerce Secretary would have been required to make adjustments to the data to prevent unauthorized aliens from being counted for apportioning House seats among the states. An amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 ( S.Amdt. 2644 to H.R. 2847 ) would have cut off funding for the census unless the census form included questions on U.S. citizenship and immigration status. The amendment would not have required the information be used for any purpose (i.e., to disregard certain individuals from the apportionment calculation). The amendment was subsequently ruled to be non-germane. H.J.Res. 11 proposed an amendment to the Constitution so that only U.S. citizens would be counted in the apportionment calculation. Specifically, it would have amended the Constitution to read "Representatives shall be apportioned among the several States according to their respective numbers, which shall be determined by counting the number of persons in each State who are citizens of the United States." On the other side of the issue, the Every Person Counts Act ( H.R. 3855 ) would have prohibited the Census Bureau from asking about U.S. citizenship or immigration status. While the Constitution permits Congress to conduct the census "in such Manner as they shall by Law direct," the census cannot be done in a way that is constitutionally impermissible. Thus, one question raised by the above legislation is whether it is consistent with the constitutional requirements for the decennial census. It seems clear that Congress could, under its broad constitutional authority to conduct the census, statutorily require the Commerce Secretary to collect information regarding citizenship status. The constitutionality of the other provisions in the legislation would appear to depend on whether the Constitution requires that all aliens must be included in the census count for any reason. If so, then it would appear that any exclusion would have to be done by constitutional amendment. On the other hand, if the Constitution requires such individuals to be excluded from the census count, then Congress could not prohibit the Commerce Secretary from asking questions about citizenship and immigration status. As mentioned above, it appears some are concerned that aliens, particularly those individuals in the country unlawfully, are included in the data used to apportion House seats among the states and determine voting districts within the states. The next section analyzes whether Congress could statutorily exclude aliens from the census count for these purposes or whether any such exclusion would have to be done by constitutional amendment. Constitutional issues could arise if aliens were excluded by statute from the census count for purposes of apportioning House seats among the states. This is because it appears the term "persons" in the original Apportionment Clause and Fourteenth Amendment was intended to have a broad interpretation that is likely expansive enough to include unauthorized aliens. If true, any proposal to generally exclude unauthorized aliens would have to be in the form of a constitutional amendment. The term "persons/people" appears throughout the Constitution, with its meaning evaluated in the context of each provision. On its face, the term's plain language meaning refers to individuals. However, it has been held to have a less obvious meaning in certain contexts; that is, to include corporations for the Fourteenth Amendment's due process and equal protection guarantees. Here, the question is whether the term refers to only a subset of individuals, U.S. citizens, for purposes of apportioning House seats among the states. It seems that "persons" is not limited to "citizens," as the Framers would have likely used that term instead had it been their intent. The Constitution uses both the terms "persons/people" and "citizens of the United States," and the terms do not seem intended to be interpreted identically; rather, "citizens of the United States" appears to be a subset of "persons/people." Courts have generally held that aliens, including unauthorized aliens, are "persons" in the context of other constitutional provisions, including other parts of the Fourteenth Amendment. While it does not appear that any court has decided the meaning of the term "persons" for apportionment purposes, a federal district court did state in dicta that the term clearly includes unauthorized aliens. It could be argued that certain aliens should not be included in the category of "persons" for purposes of apportionment because of their legal or voting status. On the other hand, historically, those without the right to vote or with inferior legal status, including women, children, and convicts, have been included. It should also be noted that some states have historically permitted aliens to vote under certain circumstances. Furthermore, the fact that slaves were to be partially counted when they enjoyed few rights seems to suggest the Apportionment Clause language was intended to be broadly inclusive. Similarly, the fact that the Framers felt compelled to specify the exclusion of "Indians not taxed" may suggest "persons" was understood to otherwise include individuals residing within a state, regardless of legal status. Thus, it can be argued that "[b]y making express provisions for Indians and slaves, the Framers demonstrated their awareness that without such provisions, the language chosen would be all-inclusive." The debates surrounding the original Apportionment Clause and the Fourteenth Amendment appear to add further support for the conclusion that the term "persons" was intended to be broadly interpreted. The Framers adopted without comment or debate the term "persons" in place of the phrase "free citizens and inhabitants" as the basis for the apportionment of the House, thus suggesting the term "persons" includes free citizens and any other individuals who would be considered "inhabitants." According to James Madison, apportionment was to be "founded on the aggregate number of [the states'] inhabitants." During the debate on the Fourteenth Amendment, Congress specifically considered whether the count was to be limited to persons, citizens, or voters. The term "persons" was used instead of "citizens" due, in part, to concern that states with large alien populations would oppose the amendment since it would decrease their representation.