It is useful to start with a not-so-hypothetical possibility. Suppose that next April 1, the official counting day for the 2020 census, a caravan of 10,000 citizens of Honduras storms across the U.S. border into Texas. Their leaders proceed to proclaim intent to remain as permanent residents.
According to the Census Bureau’s Residence Rule, they can immediately fill out census forms and be included in the population of Texas for purposes of determining the state’s number of House seats and Electoral College votes. Similarly, the 1 million people subject to final deportation orders who remain in this country must be counted. The bureau’s current test is whether someone resides here, regardless of legal status, and nothing in its rule excludes them.
The common sense response to these conclusions is: excuse me? To which the bureau would likely reply that the Constitution requires it. Move along. Nothing to see here.
The law may be an ass, per Charles Dickens, but when a result so contradicts common sense it should make us pause and take a closer look. Sure enough, there is a lot to see here, and the answer underneath it all is illuminating.
What Does the Constitution Say on the Issue?
Three essential questions are involved in this situation. First, does the U.S. Constitution require that illegal immigrants be counted for purposes of apportioning House seats and electoral votes? Second, if the Constitution is ambiguous, can the Department of Commerce decide whether to include illegal immigrants? Third, do Supreme Court precedents on one-person-one-vote require that illegal residents be excluded from the apportionment count because their inclusion dilute the votes of citizens and legal residents?
The answer to the first question depends on a proper interpretation of the Constitution. The Enumeration Clause, as modified by the 14th Amendment, says representatives are apportioned among the states “according to their respective numbers,” as determined by “counting the whole number of persons in each State, excluding Indians not taxed.” The clause goes on to require a decennial enumeration—we know this as the census.
So, as a matter of constitutional interpretation, does the phrase “whole number of persons in each State” include illegal immigrants? Without getting too into the weeds, the best conclusion is that it does not. In 1789 and 1868, the nation’s borders were open, and citizenship easily obtained, so the category “illegal alien” did not exist.
The drafters clearly wanted to extend the count beyond citizens but had no need to distinguish further. No matter your method of constitutional interpretation, however, it is hard to argue that the Constitution requires counting illegal immigrants. Instead of being added to the census, they should be subject to immediate deportation.
The Commerce Department Has a Vital Role to Play
The second question concerns the power of the secretary of commerce, to whom Congress has given responsibility to conduct the census “in such form and content as he may determine.” If the Constitution is indeterminate on the question of including or excluding illegal immigrants from the apportionment count, and Congress has been mute, then that seems to leave it up to the secretary.
In fact, the department has decided resident illegals are included. The Residence Rule makes many other determinations, including decisions as to who should be counted in which state. For instance, tourists are counted at their homes. Foreign visitors are not counted, but foreign U.S. residents are, without distinction as to legal or illegal status.
Then, there’s the hotly contested question regarding prisoners. Should they count in their hometowns or in the state of incarceration? Most legal analysis points to the latter.
Yet the Residence Rule provides no explanation for the decision to include illegal immigrants. If pushed, it is likely that Commerce would claim that the Constitution requires it, but, as argued above, this is not necessarily so.
The claim of constitutional compulsion is also contradicted by the decision to exclude foreign visitors, who are, indubitably, persons within a state on census day. Once Commerce concedes that the phrase “person in each state” can be interpreted to exclude temporary sojourners, it must go on to justify its decision to include illegal immigrants, who, if we’re following the law, should be regarded as temporary.
Commerce has been delegated the power to decide on this issue and should exercise this power by excluding illegal immigrants from the apportionment count. This could be done using normal rulemaking procedures subject to review by courts under the legal standard of not being arbitrary or capricious.
It’s Unjust to Dilute the Votes of Actual Citizens
The third question is presented in a lawsuit pending in Alabama, filed by the state and Rep. Mo Brooks. They argue that Commerce’s decision to include illegal immigrants—which costs Alabama a House seat and an Electoral College vote—violates the Constitution. Their case is that allowing illegal immigrants to count in the census dilutes the votes of citizens and the representation of citizens and legal residents alike. They point to the Supreme Court’s series of “one person, one vote” decisions.
The state of Alabama and Brooks also argue that the Residence Rule is arbitrary, as it includes illegal immigrants without explanation or justification. For those who like irony, Chief Justice John Roberts and the four social justice warrior justices bumped against the citizenship question of Trump’s Commerce Department on the ground that the decision was not adequately explained. Well, in the Residence Rule, there is no explanation of the choice to include illegals, so Alabama and Brooks should win hands down.
The courts tried to get the Alabama-Brooks case thrown out for lack of standing, a complex doctrine on who can challenge government action in court. The judge rejected this contention, so the matter is moving forward.
As a policy matter, the argument that illegal immigrants should be excluded from the apportionment count is a strong one. Their concentration in certain geographic areas skews representation and enhances the value of a vote in such areas over a vote somewhere else. Counting them creates race-to-the-bottom incentive for states and cities to encourage and protect illegal immigrants, in opposition to federal law.
Not all would agree (to put it mildly), but, as a legal matter, the Commerce Department would be on solid ground if it issued a rule excluding illegals from the count. The Alabama-Brooks suit also has considerable merit. I would bet on the success of both its arguments, except that the polarization of the judiciary makes accurate legal assessment tricky. However, it is hard to see the four leftist Supreme Court justices upholding such a government rule, or deciding in favor of Alabama-Brooks, no matter what sound legal arguments were brought to bear.
Trump’s Citizenship Question Is a Relevant One
A final issue concerns the relevance of the question about citizenship. In the Constitution, it is clear that the framers meant to include legal residents who were not citizens for purposes of apportionment. When they wanted to limit some right to “citizens,” they knew the word, and in the apportionment clause they said “persons.” A census question inquiring about citizenship would not produce information on legal versus illegal residents.
However, the citizenship question is relevant to the next round of the fight over the effects of illegal immigrants on legislative apportionment. Even if the Supreme Court ultimately rules that illegals must be counted for purposes of apportioning House seats and electoral votes, it will not end the battle. Following the census, states must conduct internal apportionments of both their allotment of House seats and their legislative districts.
The Enumeration Clause of the U.S. Constitution has no bearing on these decisions. In-state apportionments are limited only by state law, the Equal Protection Clause of the U.S. Constitution, and the one-person-one-vote decisions. Here, the arguments over the meaning of voting equality are freewheeling. Does equality mean equal populations, equal numbers of registered voters, or equal voting-age populations, or what?
The Debate Is Only Going to Get Hotter
In the Supreme Court case Evenwel v. Abbott (2016), it was ruled that the state of Texas was allowed to apportion its U.S. House and state legislative seats to equalize total population rather than voters or those of voting age. It stopped short of saying that total population is the only allowable basis, rejecting the federal government’s argument for such a conclusion.
Neither the opinion in Evenwel v. Abbott nor the government brief acknowledged the existence of illegal immigrants. Other participants in the case raised the problem, but the court did not directly address the issue. But, under Evenwel, Texas is not (yet) barred from changing its laws on apportionment to exclude illegal immigrants.
Curiously, Evenwel failed to reference the only prior Supreme Court language on the issue of illegal residents, from Burns v. Richardson, a 1966 case concerning Hawaii: “[No] decision [of] this Court [has] suggested that the states are required to include immigrants, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured.”
The count-every-illegal-nose advocates will say that this language was a casual comment that should be ignored, but they will need to explain why a statement that represented uncontested conventional wisdom in 1966 is suddenly anathema.
Following the census, the question of internal state apportionment is certain to return—with a vengeance. For states in which illegal immigrants congregate largely in specific areas, why should representatives of other locales acquiesce in their inclusion? In this battle, information on the geographic distribution of non-citizens would be useful as a start on analyzing the impact and concentration of the illegal population in the United States.
The issue of state apportionments will be back in court in 2021, whoever wins or loses in the state legislative processes. The question of including illegals will be fought all over again, on a state battleground. The battle over the citizenship question is only the beginning.