President Donald Trump told the U.S. Department of Commerce last week to develop a new census, one that does not count undocumented migrants in the United States. Trump wrote on social media: “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.”
The Constitution mandates a national census every 10 years to determine congressional representation and, according to the 14th Amendment, the count should include “the whole number of persons in each State,” not just citizens.
As the Texas Tribune reported this week, “One of the main motivations for White House officials in pushing forward a new census is the potential to reallocate political power, including Electoral College votes, from Democrat-dominated states to ones controlled by Republicans, according to two people with knowledge of the effort who were granted anonymity to discuss internal deliberations they were not authorized to publicly speak about.”
With a reconfigured census, Republicans are aiming for greater representation in Congress too, a goal also being addressed by recent redistricting efforts such as are being undertaken in Texas.
In June, MAGA-aligned U.S. Senator Bill Hagerty (R-TN) proposed a bill reflecting Trump’s census wishes, mandating a new national count “to require a citizenship question on the decennial census, to require reporting on certain census statistics, and to modify apportionment of Representatives to be based on United States citizens instead of all individuals.”
As seen below on Fox Business, Hagerty was asked if omitting undocumented immigrants from the census was constitutionally legal. The Senator said: “There’s a constitutional interpretation I think that has been misapplied that goes back to slavery days and what portion of a person is going to be counted, et cetera.”
He added, “This clearly was not the intent of the founding fathers for people who come here.”
Sen. Hagerty on his legal rationale for not counting undocumented immigrants in the census: "There's a constitutional interpretation I think that has been misapplied that goes back to slavery days and what portion of a person is going to be counted." pic.twitter.com/zhrCLTciEp
— Aaron Rupar (@atrupar) August 15, 2025
Commenters presumed Hagerty is referring to the Three-Fifths Compromise of 1787, which is found in Article 1, Section 2 of the U.S. Constitution, and “stipulated that three out of every five enslaved people would be counted when determining a state’s total population for legislative representation and taxation” — essentially counting a slave as 60% of a person, at least for purposes of apportioning congressional seats.
One X user replied: “So @SenatorHagerty – TN is referencing the Three-Fifths Compromise of 1787 where 3 of every 5 enslaved humans were counted, to justify altering the Constitutionally mandated census. He might look less micro-aggressive if he referenced the 14th Amendment to the Constitution instead.”
Another who took umbrage wrote: “So we’re clear, Sen. Hagerty’s ‘legal rationale’ is to drag us back to the logic of the 3/5 Compromise. Counting human beings as fractions was a moral stain on this country, not a precedent to revive. The Constitution requires an actual enumeration of all persons living in the U.S. Anything less is an attack on democracy itself.”
One X user saw Hagerty’s statement as an argument against his census push, noting that even slaves were counted in the census, even if not at 100%: “This actually proves the opposite of what they are saying. Slaves were not citizens, and yet they were counting them in the census.”
NOTE: The Constitutional Accountability Center reminds — in a valuable three-fifths compromise primer — that the controversial compromise is often misunderstood since “counting the whole number of slaves benefited the Southern states and reinforced the institution of slavery (while) minimizing the percentage of the slave population counted for apportionment (to three-fifths) reduced the political power of slaveholding states.”
In other words, slave owners wanted their slaves counted as 100% for political power purposes — and it was, perhaps ironically, those against slavery who reduced a slave’s political value to 60%.
Hagerty, a graduate of Vanderbilt University Law School, didn’t elaborate on what he meant when he asserted that the “constitutional interpretation” about what “portion of a person should be counted” has been “misapplied” in his opinion. As the comment above pointed out, his argument for not counting migrants would be of a piece with not counting slaves at all, and therefore an argument against the three-fifths compromise.
Whatever Hagerty’s intent, any reference to slavery is an acknowledged political third rail, sure to stir objection and powerfully emotional responses. And rhetorically linking today’s migrants with the most shameful part of America’s history and its victims is certain to trigger the kind of strong reactions Hagerty’s comment engendered.
A southern Senator does not casually reference a law that “goes back to slavery times” — without expecting to get a strong reaction.
Another commenter on X replied to Hagerty with snark, “So, if they can’t be counted, they shouldn’t have to pay taxes, right?” According to ITEP, undocumented migrants in the U.S. paid $96.7 billion in federal, state, and local taxes in 2022.
