Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes

[sl8]

Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes
(CRS, PDF):
https://digital.library.unt.edu/ark:/67531/metadc627196/m1/1/high_res_d/R41048_2010Jan20.pdf

Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes

Margaret Mikyung Lee
Legislative Attorney

Erika K. Lunder
Legislative Attorney

January 20, 2010

[...]

Summary

In the 2010 decennial census, the Census Bureau will attempt to count the total population of the
United States. This includes, as in previous censuses, all U.S. citizens, lawfully present aliens,
and unauthorized aliens. Some have suggested excluding aliens, particularly those who are in the
country unlawfully, from the census count, in part so that they would not be included in the data
used to apportion House seats among the states and determine voting districts within them.

One question raised by this idea is whether the exclusion of aliens could be done by amending the
federal census statutes, 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 House seats
among the states, although there is no constitutional requirement it be used to determine intrastate
districts. It appears the term “whole number of persons” is broad enough to include all
individuals, regardless of citizenship status, and thus would appear to require the entire
population be included in the apportionment calculation. As such, it appears a constitutional
amendment would be necessary to exclude any individuals from the census count for the purpose
of apportioning House seats.

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.
Such legislation would have either amended the Census Clause of the Constitution or enacted or
amended federal census statutes. In the 111th Congress, legislation has been introduced that uses
both approaches. The Fairness in Representation Act would statutorily exclude aliens from the
population count for apportionment purposes (H.R. 3797 and S. 1688). Under the above analysis,
it would not appear to be constitutionally sufficient for Congress to amend the federal census
statutes in such manner. Meanwhile, H.J.Res. 111 would take the other approach and amend the
Constitution so that only U.S. citizens would be counted in the apportionment calculation.

Other legislation in the 111th Congress would not raise the same constitutional issues since they
would not appear to require the exclusion of any individuals for apportionment purposes. An
amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related
Agencies Appropriations Act, 2010 (S.Amdt. 2635 to H.R. 2847), would have cut off funding for
the census unless the census form included questions regarding citizenship and immigration
status. The amendment was subsequently ruled to be non-germane. On the other side of the issue,
the Every Person Counts Act (H.R. 3855) would prohibit the Census Bureau from asking about
U.S. citizenship or immigration status.

[...]

More at link.

[TreasonousBastard]

1. Good modern history, but the original debates over the enumeration clause...

should be addressed.

Here's one source:

https://constitutioncenter.org/blog/does-the-census-actually-count-everyone-and-should-it

<...>
In modern times – and, indeed, at the center of the case now before the Supreme Court – this debate over what constitutes an “actual enumeration” has been significantly affected by the interaction of realities. First, it has always been understood (though frequently debated all over again from time to time) that the census should not only count every citizen, but every resident – including non-citizens who live in the country, whether or not they entered legally, and, second, the count thus will include between 10 and 11 million undocumented immigrants now living in the United States, many of them living with uncertainty about their right to remain.
<...>

And, in a retort to another piece arguing that the Census should not count non-citizens:

https://www.brennancenter.org/blog/accounting-census-clause

<...>
In a move that is sure to irk "strict constructionists" the authors ignore the plain text of the Constitution and cite enabling legislation for support, arguing that the name of first census act used the word "inhabitant" and that the contemporaneous definition of that word were persons entitled to the privileges conferred by the state, which would exclude unlawful residents. The word "inhabitant," is not used in the Constitution's Census clause, but is instead used when describing qualifications of Representatives and Senators. In the Qualification clauses, the word "inhabitant" probably fairly means what the authors say it means. But, it is improper for the authors to import a word from other sections of the Constitution into a clause where the framers deliberate and purposely omitted that word and claim that the word is controlling.

Even if Congressional understanding of the Constitution trumps its plain text, the first census act actually suggests reaching a contrary conclusion because that act counted slaves and non-white free persons. It required the district marshals to swear or affirm an oath that they would undertake a "just and perfect enumeration and description of all persons resident within my district." Those facts mean that Congress at least had a more expansive view of "inhabitants" than the authors would allow, and as the Constitution indicates, Congress gets to make the call as to the details.
<...>

And, then we harken back to the 3/5 clause, which assumed that slaves were not citizens, but were to be counted as "persons". An horrific compromise that would be unimaginable today, but does show that the Founders had few problems with counting non-citizens.

And, we can confuse things even further by equating "citizens" with voters. Since women couldn't vote back then, should we drop them from the Census? See how deep we can fall into that rabbit hole?

Nowadays, it seems adding a citizenship question would just cause more problems. First problem is how do we distinguish between legal and illegal non-citizens? Long-term resident aliens use many of the same services and deserve the same Congressional representation the rest of us have.

And, do not EVER forget that California, New York, Texas and a few other states would lose House seats.

[SCantiGOP]

2. Has anyone seen

A model of which states would lose seats if non-citizens were excluded?
I know NY, CA and TX would be on that list, but a lot of red states in the South and Midwest have large numbers of undocumented persons working in agriculture-related fields, both harvesting and processing.
No judgement on immigration issues here, just wondering if maybe the impact wouldn’t be as one-sided as everyone assumes.

[TreasonousBastard]

3. I haven't, and I'm not sure how one would even come up with...

estimates. I do know that several other random Census surveys do ask about citizenship, but I'm not sure that would be an accurate enough sample for House apportionment.

At any rate, Congress, and only Congress has the right to deal with changes to the decennial census. That's right there in the Constitution, and Trump is supposed to keep his hands off of it.

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4. Thank you. n/t

[The Mouth]

5. Costs and infratructure

My understanding is that one of the original purposes in using the census for apportionment is related to infrastructure.
Since representation will have a direct effect on budget, the general population is what matters. Citizens, non citizens, undocumented persons ALL put a burden on roads, bridges, communications and other costs that are often apportioned between or by the states.

I think the reasoning still stands; even if someone is here illegally, they still use water, drive on roads, are someone who might need emergency care in a disaster, etc.