Recent statements by President Trump, in conjunction with a recently introduced house bill, have refueled a contentious issue related to the decennial census and who should be counted. For many reasons, this has become a partisan rather than practical matter, but here we attempt to stick to practicalities if possible and discuss the historical (and often troubling) evolution of the issue as well as the implications of its resolution.
To the extent that the order in which topics appear in the constitution indicates importance, the framers considered the enumeration of people for the purposes of equal representation to be key:
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” (Article 1, Section 2)
The concept of ‘citizen’ is important here, even though it is not referenced or defined. It developed from Greek and Roman republics that identified a ‘citizen’ as one who offered allegiance and obedience to the laws of the state in exchange for its legal protection, and most often the right to participate in elections. Clearly, not all persons residing in the country are citizens and even at the time our constitution was penned, citizenship was reserved for free persons only, as the immoral practice of enslavery was yet globally common into the 19th century.
Citizenship rights accrue automatically to those born in a country, but there must also be a mechanism for allowing persons to become citizens, referred to as naturalization. Congress acted in 1790 to adopt rules for naturalization, which were subsequently changed several times over the following decades. Essentially, naturalization involves the renunciation of any foreign allegiance and an agreement to submit to the laws of the United States. Along with these procedures came laws prohibiting people from entering the country without permission, first codified nearly 120 years ago and established the concept of an ‘illegal alien’.
For several decades, and during the previous administration in particular, the problem of illegal immigration has attracted much attention. Although estimates widely vary, most would agree that we have at least 20 million people who reside in the United States but lack legal status. This has a significant impact on representation and has thus become a highly charged political issue.
The purpose of the decennial census, as established by the constitution, is twofold: for apportioning representatives and for apportioning direct taxation. Over the years, the courts have ruled that other purposes are legitimate, and the census has long been used to guide public policy and by the private sector for market and social analysis.
Asking about citizenship status is not a new idea – the census asked citizenship status on each census from 1820 to 1950. When the short form (100% enumeration) and long form (sample) format was adopted for the census, citizenship questions were asked in the long form. With the termination of the long form after the 2000 census, citizenship questions are asked only in the annual American Community Survey (ACS).
Many of the arguments posed for including or excluding a citizenship question are politically driven at worst and speculative at best. Arguments that people won’t answer the census may be true, but this would surely apply to the ACS as well, yet we have not seen any argument that the ACS should not include those questions. Non-response is a significant problem for the census that is much more complex than differences in response based on legality or citizenship.
We can divide the population present on census day into several groups:
- Citizens
- Native born or legally declared (e.g. children of Americans living abroad)
- By naturalization
- Non-Citizen Residents
- Legally present permanent (e.g. green card holders)
- Legally present temporary (e.g. students, tourists, temporary workers)
- Illegally present permanent residents
- Illegally present temporary (those who overstay tourist or student visas)
Which of these groups should be enumerated? Most would likely argue that temporary residents of any type should never be enumerated, and that citizens and naturalized citizens should always be enumerated (and actually have the legal responsibility to participate). The other two groups, however, are likely to spark more contention.
An argument could be made that for purposes of representation that only citizens (native born and naturalized) should be included. The wording of the constitution would seem to go against this notion, in that citizenship is not mentioned in the enumeration clause. Further, the slave population was explicitly to be enumerated, although those counts were to be, for lack of a better word, discounted.
The fourteenth amendment to the constitution, added just after the civil war, states (in part):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
There is considerable ambiguity in the language – are non-citizens “subject to the jurisdiction thereof”? Are the persons referred to as citizens the same persons (or a subset) of the persons referred to as having “equal protection under the laws”? After all, a naturalized citizen does not in fact have the same legal rights as a native born citizen – citizenship can be revoked in the former case. On the other hand, the explicit exclusion of counting ‘Indians not taxed’ is problematic, since it creates a class of individuals who are most certainly born in the United States but are excluded presumably because they are not ‘under the jurisdiction thereof’, a phrase which is not defined. Finally, the language of the second paragraph seems to indicate that States which deny adult citizen males who are not felons their vote would have their population basis reduced for the purposes of apportionment, but apportionment is based on a count of persons, so which is it?
One need not have legal training to recognize that a contract which is hopelessly ambiguous will be unable to provide definitive guidance to a complex question such as who should be counted for redistricting purposes.
So who should be counted? Most of the usage of the census is for non-apportionment purposes, and most would likely agree that ideally, all ‘permanent’ residents should be enumerated. Whether planning schools, transportation systems or retail outlets, a complete enumeration is essential. Considering the non-apportionment use of the census, it is imperative that the decennial count be as close to correct, and complete, as possible.
For apportionment, if the illegally present population were distributed proportionately across the country, it would be a moot point whether they are or are not counted. We know, however, that these populations are concentrated in certain regions of the country and studies have shown that the allocation of congressional seats to states would in fact change (for example, https://www.pewresearch.org/short-reads/2020/07/24/how-removing-unauthorized-immigrants-from-census-statistics-could-affect-house-reapportionment/ and https://pmc.ncbi.nlm.nih.gov/articles/PMC11811896/). Both sides of the argument can find support in the constitution and in legal precedents. Whether one agrees with the motivation for raising the issue of who should be enumerated and whether citizenship should be asked, it is in the long run healthy for debate to occur. And the resolution must ultimately be by clear legislation from Congress, accompanied by cogent court decisions from the lawsuits which will inevitably follow. As a nation, we do need to confront this directly, and do it soon.
In the meantime, AGS is committed to creating the most accurate demographic estimates possible, regardless of who the census counts and why. This means going well beyond the census as a core data source, by supplementing it with hyper-local data from parcels, building permits, mailing lists, and mobility data in order to more correctly estimate population.
Recent Comments