Census and citizenship - argument against counting illegal aliens for purposes of congressional apportionment

National Review, Sept 29, 1989

Sometime before the end of the year, the House of Representatives is likely to address one of the most outrageous of all federal policies-the counting of illegal aliens in the census for purposes of congressional apportionment. Recently, the Senate voted to require the Census Bureau to adjust its procedures so that apportionment figures following the 1980 census would exclude illegal aliens. With opposition from much of the Hispanic community and from representatives from states in which large numbers of illegals reside (California, Texas, New York), the outcome in the House is uncertain. In 1980, an estimated two million illegal aliens were included in the count; on the same basis, that figure today is estimated to have risen to over six million.

What is at stake in this debate is far more than whether a handful of House seats shifts from Pennsylvania and Michigan to California and New York. Rather, it is quite literally the meaning of citizenship. To allow the governmental structure in

the United States, as well as the political balance of power, to be affected by six million individuals who are unlawfully in this country (and presumably subject to deportation if caught) is seriously to dilute the value of citizenship for those individuals who are properly a part of the political community.

To accord a state with a high concentration of illegals an effective representation of one representative per 450,000 citizens while according astate with few illegals only one representative per 600,000 citizens works to the obvious disadvantage of the latter and its citizens. Indeed one might wonder about the commitment to enforcing the immigration and naturalization laws on the part of state officials whose jurisdictions might stand to gain one or two congressional seats.

As so often, the Constitution is raised as a barrier to common-sense policy. The Mexican-American Legal Defense and Education Fund (MALDEF) characterizes efforts to exclude illegal aliens as "disastrous" and unconstitutional. It correctly points out that the Fourteenth Amendment requires that apportionment be based upon the "whole number of persons in each state." That, however, does not resolve the matter. Rather, the phrase "in each state" has been viewed, since the time of the Framers, as communicating the idea that the persons to be counted "belonged" to the state in some comprehensible way. Thus, the apportionment count has never been viewed as covering European tourists who might be in North Dakota on census day, or diplomatic personnel, or invading armies, notwithstanding that these might reasonably be deemed " persons."

Certainly, those who drafted the Constitution, as well as the drafters of the Fourteenth Amendment, never contemplated the impact of their handiwork upon illegal aliens. There were no immigration laws of note and therefore no illegal immigrants. Times have changed considerably. If our constitutional analysis is incorrect, then the Constitution ought to be changed. As one Democratic representative from North Carolina recently put it, "What a weird situation, what an awful situation for North Carolina or any other state, to lose representation in Congress because of people who ignore our laws."