A battle is being fought in the Senate over an amendment proposed by Sens. David Vitter (R., La.) and Bob Bennett (R., Utah) to the Commerce and Justice Department spending bill. It would force the Census Bureau to do something it wants, for unclear reasons, to avoid – add a citizenship and legal-status question to the Census form. The amendment would bar any funds from being used for the Census if that question is not asked.
This is a very important issue for two reasons. First of all, the Census is the only way of trying to get an accurate count of how many illegal aliens are in the United States, a number for which estimates range from 11 million to 15 million and perhaps even higher. Census numbers are used for two main purposes: to distribute billions of dollars in federal funds to the states, and to reapportion congressional seats. Both of these have profound political consequences. And no matter where you stand on the immigration issue (amnesty vs. enforce our laws and expel them vs. somewhere in between), you would think that all sides would want to know the exact extent of the problem. Including illegal aliens in the last Census cost a number of states, including Indiana and Mississippi, representatives in Congress, and projections for 2010 show that some states will again lose congressional seats to others, like California and Texas, that have large illegal-alien populations.
The Census Bureau used to ask about citizenship and legal status in the long form it sent out to a select number of American households, but this year, for the first time, it is only sending out a short form with no citizenship question. There is no question that it is constitutional for Congress to require this question in the Census; the real debate is over what use can be made of the information. Can Congress authorize apportionment to be based only on citizens and aliens who are lawfully present in the United States?
Some advocates claim that basing apportionment only on citizens is unconstitutional because the Constitution requires an enumeration of all “persons.” But the Supreme Court has never decided the meaning of this clause, and there are arguments on both sides that make the matter uncertain. Proponents argue that neither the Founders nor the Framers of the Constitution had any concept of illegal aliens, so one cannot say they intended to include them in the term “persons.” John Baker of Louisiana State University notes that the first Census Act passed by Congress required a Census of all “inhabitants,” a term with a well-defined meaning at the time as someone who is a “bona fide member of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer.” That is not a definition that would apply to illegal aliens.
The term “persons” appears throughout the Constitution and has been interpreted in different ways depending on the provision. Under the 14th Amendment’s due-process requirements, corporations are included in the term “persons.” I seriously doubt that those who argue that “persons,” as used in the Census clause, includes all illegal aliens would also argue that corporations must be included in the count. There is also an argument that including illegal aliens potentially violates the “one-man, one-vote” doctrine established by the Supreme Court. On the other hand, “persons” under the Enumeration Clause did include slaves, who were not entitled to vote, and the Framers could have used the term “citizens” instead of “persons” but did not. Yet Congress’s power over the Census and apportionment is extremely broad, so if it is a close question, Congress may very well have the power to decide whether illegal aliens should be included in apportionment.
Regardless of its effect on congressional apportionment, the question about Census respondents’ citizenship and legal status is important and should be asked. This is a fight well worth having. It is difficult to come up with any rational reason why the Census should not count the number of individuals who are present in this country without license, given their huge effects on government budgets, our economy, and the distribution of political power. Even if it turns out that Congress does not have the power to change the apportionment process without a constitutional amendment, we need the numbers to know the extent of the problem. And there is probably nothing that prevents most states from refusing to include illegal aliens in their apportionment of state and local legislative seats. But they will only be able to do that if the Census Bureau does its job and gets a real count of who is in America today.