Controversy Over Re-introducing The Citizenship Question To The Decennial Census
September 17, 2018 by psb40
By John S. Baker, Jr., Visiting Professor, Georgetown University Law Center; Professor Emeritus, Louisiana State University Law Center
For the 2020 census, the Department of Commerce has proposed asking respondents whether they are citizens of the United States. Since inclusion of the citizenship question was announced in March, six federal lawsuits have been filed demanding that judges stop the Department of Commerce from asking on the 2020 census about respondents’ citizenship. A judicial determination that the Census Bureau cannot include the citizenship question will block collection of information that a number of states do not want known, namely the number of illegal aliens present in the United States.
The constitutionality of the census asking people whether they are citizens cannot be doubted. Past censuses have done so. Article I, Section 2, of the Constitution requires a decennial census and authorizes Congress to conduct the census “in such a Manner as they shall by Law direct.” Congress has created the Census Bureau, housed within the Department of Commerce, and authorized it to conduct the census. The Constitution “does not prohibit the gathering of other statistics, if ‘necessary and proper,’ for the intelligent exercise of other powers enumerated in the constitution, and in such case there could be no objection to acquiring this information through the same machinery by which the population is enumerated.”
The challengers object that the citizenship question has not been asked since 1950, as if that somehow constitutionally estops the reintroduction of the question. They claim that including the question will result in an undercount. Since George Washington complained that the first census undercounted, that claim has become routine. What the challengers really mean is that illegal aliens are less likely to fill out the census.
The constitutional purpose of the decennial census is to determine the number and distribution among the states of those persons entitled to be represented in the House of Representatives and the Electoral College, namely citizens and permanent legal residents. California, New York, and other states are concerned about losing federal monies distributed based on the census. That non-constitutional purpose for which the census is used should not become “the tail that wags the dog.”
The federal district judge presiding in the largest of the six cases has recognized, as he must, that Congress has authorized the Commerce Secretary to ask questions of his choosing. Nevertheless, suspecting “bad faith” on the part of the Trump Administration, the judge has allowed the litigation to proceed—presumably to find evidence of bad faith.
In an eight-page letter-memorandum, Secretary Ross explained his decision to include the citizenship question. Among other reasons, he pointed to the need for a reliable calculation of the citizen, voting-age population in order for states to meet their obligations under the Voting Rights Act. A number of state attorneys general had requested that information. Without such information, the states they represent will be ill-equipped to defend against the litigation over redistricting that is sure to follow the 2020 census.
New York’s Attorney General objects that an undercount of “immigrants” will deprive that state and others of seats in the House of Representatives and votes in the Electoral College. That claim misuses the term “immigrant.”
Illegal aliens are not “immigrants.” An “immigrant” is a person granted the status of “permanent legal resident” by federal law. They are U.S. nationals and count for purposes of representation. Aliens, including foreign tourists, foreign students, and persons who entered with no legal status or stayed longer than legally allowed, are not entitled to be represented.
States are assigned Representatives in the House and, in part, votes in the Electoral College “according to their respective Numbers.” Political power for each state, therefore, rests on who is counted in the representative numbers. Gaining or losing numbers relative to other states means gaining or losing political power in the House of Representatives and the Electoral College.
Representation has always extended beyond persons eligible to vote. The first Census Act provided for the counting of all “inhabitants,” and included children, slaves (3/5ths), and women in the count—none of whom could vote. Theoretically, representation has been based on the number of those whose interests the representatives were to protect. Of course, the interests of slaves were not represented at all and those of women were only indirectly represented. Still today, American nationals under the eligible voting age of 18 are represented only indirectly.
No theory of self-government can justify one country “representing” citizens or subjects of another sovereign. Other citizens to whom I have spoken simply assume that the census should count only citizens and legal permanent residents. Inclusion of aliens among those represented in “We the People of the United States,” ought to offend not only U.S. nationals, but also aliens and their governments.
Providing political representation for aliens in the elections for the House of Representatives conflicts with the “one-person, one-vote” principle. That principle does not prevent states from using total population to draw state legislative districts. Evenwel does not resolve, however, who can be included in the population base for allocating seats in the U.S. House of Representatives.
Congressional districts which include large numbers of aliens have a smaller population of persons legally eligible to vote than districts with few or no aliens. Districts with disproportionately large numbers of U.S. nationals under 18 also have fewer persons eligible to vote. Those under 18, however, are entitled to be indirectly represented; aliens are not.
Far from being unconstitutional, the citizenship question is necessary to collect the data for a redistricting of House seats that excludes aliens from the calculation. That, in turn, will set the stage for the Supreme Court to decide the constitutional question of whether aliens are to be included in the allocation of House seats and votes in the Electoral College.
 U.S. Const. art. I, § 2.
 United States v. Moriarity, 106 F. 886, 891 (S.D.N.Y. 1901).
 Opinion and Order re: Motion to Dismiss, New York v. U.S. Dep’t of Commerce, 18-CV-02921 (S.D.N.Y. July 26, 2018).
 Id. at 69.
 Letter-Memorandum from Wilbur Ross, Sec’y of Commerce, to Karen Dunn Kelley, Under Sec’y for Econ. Affairs, on Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire (Mar. 26, 2018), https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf.
 Id. at 1-2. The Voting Rights Act prohibits “vote dilution” that would produce discrimination in the results of redistricting.
 8 U.S.C. § 1101 (2014).
 U.S. Const. art. I, § 2.
 Census Act of 1790, 1 Stat. 101 (1790).
 Wesberry v. Sanders, 376 U.S. 1 (1964).
 Evenwel v. Abbott, 136 S. Ct. 1120, 1132 (2016).
 Id. at 1143-1144 (Alito, J., concurring).