The Census and “Illegal Aliens”
posted by Darren Hutchinson
The Los Angeles Times has published an op-ed that criticizes the inclusion of undocumented individuals in Census data and the subsequent usage of this data to allocate House seats. The authors, Richard Greener and George Kenney, contend that allocating House seats based on data that include nonvoting undocumented individuals unfairly privileges states with higher percentages of undocumented persons. Greener and Kenney liken this situation to the benefit Southern states gained in Congress from the counting of slaves and then freed blacks — despite their inability to vote. They argue that the allocation of House seats should rest only on numbers of “citizens,” rather than “illegal aliens.”
There are several problems with the authors’ reasoning. First, they seem to conflate that status of “noncitizen” with “illegal alien,” even though legal aliens are also noncitizens. It is unclear why they focused only on the supposed unfairness of counting illegal aliens when legal residents would present similar issues (e.g., they cannot vote).
Furthermore, as other commentators have argued, the Constitution seems to resolve this matter. The Fourteenth Amendment states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” The Constitution requires an allocation based on “the whole number of persons,” not ”citizens.”
Finally, other nonvoting groups impact the allocation of representatives, but the authors seem unconcerned with these populations. For example, in many states, felons are permanently disenfranchised. In addition, some states have relatively younger populations than others.
May 30, 2010 at 9:10 am
Tags: census, house of representatives, illegal aliens
Posted in: Constitutional Law
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Responses (5)
Norman Williams - May 30, 2010 at 9:43 am
Great post, but I wonder whether you are too quick to assume the propriety of basing representation on total population (as admittedly the Constitution commands for the U.S. House). The Greener/Kenney op-ed’s conveniently selective targeting of undocumented aliens makes their criticism ring hollow, but there is a good question why state legislatures should draw state legislative districts based on total population rather than voting strength. If we truly believe in political equality and the one person, one vote understanding of it, doesn’t that suggest that state legislative districts be drawn based on the number of registered voters? (To emphasize that I am in no way attempting to rehabilitate the Greener/Kenney approach, note that registration differs markedly from citizenship). And, to put the point directly, doesn’t any defense of the use of total population rest on that now indefensible notion of virtual representation — that registered voters represent the interests of non-voters, like children or, a century ago, men’s wives?
Ken - May 30, 2010 at 12:00 pm
Norman, I think your point is at least reasonable, and perhaps right, regarding redistricting, but there is another more basic issue–”allocation” in Darren’s discussion referred to the allocation of number of representatives to states. That is reinforced by his citation of the Fourteenth Amendment, which mentions “apportionment **among the several states** according to their numbers.”
I think this is a separate issue from the apportionment of districts within a state, which is another thorny matter.
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Steven Lubet - May 30, 2010 at 3:25 pm
The proposal could backfire because exclusion of undocumented aliens from the apportionment number would have the effect of reducing the representation of states most severely affected by illegal immigration. Arizona, Texas and California would be prime candidates for losing congressional districts. Thus, there would be fewer representatives in congress who had a direct interest in solving the problem.
BL1Y - May 30, 2010 at 3:40 pm
I don’t think the “whole number of persons in each State” language necessarily means you count illegal, or even legal immigrants. Common sense dictates that not every person located in the state gets counted.
New York City receives 8-9 million foreign tourists each year, and around 35 million domestic tourists. Do any of these people get counted? They are whole persons who were in the state, but I think we’d all say no, they don’t count. But, what about someone staying 6 months with a valid visa? What about foreign students who will be returning to their home country after they graduate?
What about everyone who commutes from Jersey to work in New York? Unlike tourists, they’re going to be in NY maybe 300 days a year. If they’re attorneys, they’ll be in NY more than they are in NJ.
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