Thirty-Thousand.org

Hypothetical scenario: State A has a large number of illegal aliens and State B has very few illegal aliens. Because illegal aliens are included in the population census, State A receives (in the 2010 apportionment) an additional federal Representative that would have otherwise gone to State B.

Question: is it fair and appropriate for State A get that extra Representative?

Unfortunately, that probably is not a hypothetical scenario.

I believe that noncitizens should be excluded from the population census used to allocate representation in the U.S. House. Noncitizens include illegal aliens (a.k.a. "illegal immigrants"), as well as legal foreign nationals such as exchange students or family members who are visiting from another country.

The Census Bureau should be required, by Congress, to collect the information necessary to apportion representation among the states based only on the total number of U.S. citizens. To do otherwise risks unjustifiably allocating too much representation to one state vis-à-vis the other states.

How is a respondent's citizen status to be verified? There is probably not an acceptable way to determine, in every case, whether the person being surveyed is actually a citizen. We obviously do not want to empower the census takers to demand passports or birth certificates. Instead, an acceptable solution would be to simply ask those being polled: "Are you a citizen of the United States?" In addition, instruct those who are completing the census forms to exclude any residents of the household who are noncitizens (or alternatively, identify them as noncitizens on the Census form).

Of course, there is a risk that some noncitizens will falsely claim to be citizens, but falsely including a few noncitizens in the population count is certainly more equitable (for calculating the apportionment) than deliberately attempting to include all of them.

On the subject of noncitizens and apportionment, and for future reference (mine or anyone else's), below are various random links I found based on a quick search. There are probably a few more worth adding.

News stories:

ABC: Senators Try to Exclude Illegal Immigrants From 2010 Census
by Haya El Nasser
http://abcnews.go.com/Politics/senators ... id=8825960 (14-OCT-2009)

Wall Street Journal: Our Unconstitutional Census
by John S. Baker and Elliott Stonecipher
http://online.wsj.com/article/SB2000142 ... 81832.html (10-AUG-2009)

LA Times: U.S. Census sparks feud over the counting of illegal immigrants
by Teresa Watanabe
http://articles.latimes.com/2009/may/31 ... -boycott31 (31-MAY-2009)

Other commentaries:

BigGovernment.com: Will the Census Count Illegal Immigrants?
by Sen. David Vitter (R-LA)
http://biggovernment.com/2009/10/08/wil ... mmigrants/# (8-OCT-2009)

Drum Major Institute:Sens. Vitter And Bennett Insist On Robbing Their States of Greater Census Representation
by Andrea Nill
http://www.drummajorinstitute.org/libra ... hp?ID=7138 (7-OCT-2009)

The Census Project Blog: Undocumented Immigrants & the U.S. Census
by Terri Ann Lowenthal
http://censusprojectblog.org/2009/10/06 ... -s-census/ (6-OCT-2009)

14thAmendment.us: Apportionment and the 14th Amendment to the US Constitution
by Fred Elbel
http://www.14thamendment.us/apportionme ... nment.html (1-DEC-2008)

Go Articles: The Politics Of Illegal Immigration
by James W. Smith
http://www.goarticles.com/cgi-bin/showa.cgi?C=1113219 (08-SEP-2008)

Huffington Post: Should The Census Count Illegal Immigrants?
by Chris Weigant
http://www.huffingtonpost.com/chris-wei ... 66897.html (3-OCT-2007)

The apportionment figure must include illegal aliens and other noncitizens due to constitutional imperative. "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." U.S. CONST. amend. XIV, § 2 (emphasis added). Note that it does not say the whole number of citizens; it's the whole number of persons. There are no longer any untaxed Indians. See 87 CONG. REC. 70 (1941) (citing Superintendent of Five Civilized Tribes v. Comm'r, 295 U.S. 418 (1935); 39 Op. Att'y Gen. 518 (1940)). As a result, everybody "in each State" counts towards the apportionment figure.

HouseSizeWonk wrote:The apportionment figure must include illegal aliens and other noncitizens due to constitutional imperative. ...

Are you saying that the only way to change this (so that only citizens are counted) would be through a constitutional amendment? So if Congress did enact such a law, SCOTUS may rule that law to be unconstitutional?

JEQuidam wrote:

HouseSizeWonk wrote:The apportionment figure must include illegal aliens and other noncitizens due to constitutional imperative. ...

Are you saying that the only way to change this (so that only citizens are counted) would be through a constitutional amendment? So if Congress did enact such a law, SCOTUS may rule that law to be unconstitutional?

I am saying precisely that. Such an amendment has been proposed. See H.R.J. Res. 11, 111th Cong. (2009); H.R.J. Res. 6, 110th Cong. (2007); H.R.J. Res. 53, 109th Cong. (2005).

This makes sense; at the time the 14th Amendment was proposed and ratified, there were no immigration controls. Moreover, it is at least arguable that the number of people living in a given place should determine the number of representatives it gets, given that the sheer size of the human population (whether citizen or non-citizen) affects the need for the distribution of public resources, and that not allowing the illegals to vote for the representation strikes the adequate balance. I happen to disagree, but it's arguable.

Hi I'm new here.
Long ago I came across this issue and postulated a new House of Representatives, 10,000 in number, meeting in a large stadium, each Rep. bringing local answers to wide ranging issues and the collective surplus to bear on pressing local concerns. What an experiment!

Anyway, as to the issue at hand, it seems somewhat superflous, in that what matter does it if apportionments are applied to population since if both the number/amounts of Reps, tax burden, and collective largesse are applied with the same formula. It all seems to work out as a wash.

One can't deny a state, burdened, willingly or otherwise, albeit due to disrupting immigration policies, the collective national resources to function, provide for all and thereby better secure peace, security and greater good for all.

Status of population might be better addressed with other plans and thereby not further complicate the process of gaining for all posterity the promise of a propoportionate representative republic.

General Welfare

JEQuidam wrote:

HouseSizeWonk wrote:The apportionment figure must include illegal aliens and other noncitizens due to constitutional imperative. ...

Are you saying that the only way to change this (so that only citizens are counted) would be through a constitutional amendment? So if Congress did enact such a law, SCOTUS may rule that law to be unconstitutional?

Exactly. The Court applied this same logic to give due process rights to illegal aliens. The 5th amendment only speaks of a "person" and not a citizen. That's why the old argument of "why can't we just deport all illegal aliens" doesn't work. Someone accused of being an illegal alien or committing a crime while being an illegal alien is entitled to the same due process rights as every citizen just like every person, legal or illegal, is counted in the census for purposes of apportionment.

Interestingly enough, the attempts to exclude immigrants from the apportionment count was part of the reason some in Congress wanted to pass the law capping the House at 435. The rural districts didn't like the idea of the cities gaining so many votes because they had grown so much due to the wave of immigration in the 1910-1920 period. I believe there was even an attempt to include an amendment to the 1929 apportionment bill that was nearly identical to the proposed amendment you mentioned is being currently proposed.