Anger among conservatives over President Obama’s decision to grant amnesty to four or five million illegal immigrants has focused not only on the substance of the decision but also on the constitutionality of his exercise of executive power. And while that debate is important, the separation of powers is not the only significant constitutional matter at stake. In contention as well are the contours of representative government itself.
Knitted to the issue is the question of the apportionment of the 435 seats in the House of Representatives and the distribution of Electoral College votes among the states, which are tied to the census count conducted every 10 years. Under current directives, that count tallies up not only citizens and legal resident aliens, but also those here illegally. The latters’ inclusion appears to be mandated by the language of the 14th Amendment which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state.”
This reading of the 14th Amendment creates a set of incentives for states to tolerate, if not actually invite, more illegal immigration within their boundaries. Reapportionment is a zero-sum game. With the total number of House members set by law at 435, states stand to lose a representative (or two) as other states win additional members. More bodies equals more representatives, and more votes when it comes to selecting a president.
Since the 1980 census, the government’s official tally of population—through the use of the “short form”—has stopped including data as to whether those being tallied are citizens, legal, or illegal immigrants. However, the Census Bureau continued to try and estimate the numbers in these various categories. In 1985, for example, director of the Bureau of the Census John Keane testified before a Senate subcommittee that, based on bureau estimates, California and New York had each gained a congressman (while Georgia and Indiana each lost one), thanks to the number of illegal aliens in those states.
Because of the likely sensitivity of the issue, the Census Bureau did not calculate similar figures after the 1990 reapportionment, but an estimate of the impact of immigration by Texas A&M demographer Dudley Poston Jr. and colleagues found that California gained two congressmen, Texas one, while Kentucky, Massachusetts, and New Jersey each lost one. And, while certainly not the only reason for a “plus-up,” it’s no coincidence that immigrant-heavy Texas, Arizona, Nevada, and Florida ended up with additional representation in Congress after the 2010 census. And, of course, hundreds of billions of dollars in federal largesse are tied in part to population counts—only sweetening the pot a state stands to collect by pumping up its numbers.
Given voting patterns among Hispanics, the president and his party have further partisan reasons to welcome illegal aliens. According to a March 2013 Department of Homeland Security report, 73 percent of the unauthorized population in 2012 congregated in the 10 states of California, Texas, Florida, New York, Illinois, New Jersey, Georgia, North Carolina, Arizona, and Washington. And while we would like to think noncitizens are not allowed to vote, research done by Jesse Richman and David Earnest has shown that more than 14 percent of noncitizens sampled in 2008 and 2010 indicated not only that they were registered to vote, but also that in some close elections, those votes likely made a difference in determining the winner.
This is not to mention how President Obama’s recent decision only increases the likelihood that those contemplating jumping America’s borders will now do so, with the expectation that, once over, they will eventually be amnestied. As even the New York Times noted, when “Congress granted amnesty to an estimated three million illegal immigrants as part of a [1986] law that also promised to crack down on further illegal immigration by imposing sanctions on employers who knowingly violated the law,” the result was that by 2000, there were “twice as many illegal workers.” Legalized immigrants were attractive anchors for relatives who joined them in the United States without fear of any tangible legal repercussions.
Further multiplying those numbers is the growth in population that inevitably occurs when individuals meet, marry or not, and find themselves in the family way. While parents might be “illegals,” the children born here are not. In short, any larger discussion of amnesty and a path towards citizenship for any portion of today’s illegal immigrant population to be serious must consider these demographics: In 2012, 61 percent of unauthorized immigrants were in the 25-44 age range, according to DHS. There’s a fertile field of future voters there who would be, if current trends hold, overly inclined to reward the president’s party with their ballots.
All of this has helped stand the Constitution on its head. Along with the 16th Amendment, which allows Congress to levy a federal income tax on individuals, current policy toward illegal aliens undoes the founding logic at the heart of the apportionment clause, which specifies that reapportionment and direct taxes both are to be based on census returns. Madison explains why in Federalist 54. Since the federal government at the time was to be dependent on the “disposition, if not the cooperation of the States” for an accurate census count, Madison writes that some counterbalancing measure was needed to keep the states honest in reporting their population, so as to prevent them from inflating those numbers to gain an advantage in apportionment. The solution was to tie the federal government’s ability to tax a state to its census returns as well. “Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.”
Addressing the problem is complicated by vagaries in the germane constitutional language—in particular, the issue of what is meant by “persons” in the apportionment context of the 14th Amendment.
On the one hand, the Constitution explicitly states that “persons” are to be counted in the census for congressional apportionment. This seems distinct from “the people” that are mentioned in the Preamble and the Second Amendment—where “the people” clearly refers to the citizens of this specific American polity. And, indeed, during the debate over the use of the phrase “the whole number of persons in each State,” Sen. Roscoe Conkling (R-N.Y.), one of the drafters of the 14th Amendment, was apparently insistent about the broad language to ensure that his state’s 390,000 “unnaturalized foreigners” be counted for apportionment purposes.
On the other hand, the problem of illegal aliens was not something at the forefront of the minds of the amendment’s drafters and can hardly be said to be part of their specific intent to include under the word “persons.” And while the “unnaturalized foreigner” in 1866 was easily enough “naturalized” by taking an oath of allegiance to the Constitution, providing some proof of good character, and abjuring foreign titles or allegiance, the individual was also required to have established residency in the country for five years.
In other words, there was an implicit understanding that such persons would be on their way to having a connection to the state beyond mere presence on the day the census taker was in the neighborhood. Bolstering this line of argument are the Census Bureau’s own exceptions to the individuals it counts as part of a state’s total: tourists and other short-term visitors, seasonal residents, diplomats, and certain students and persons working and sleeping most of every week in a state other than where their family and possessions are located. In short, while the use of the word “persons” obviously was meant to cover more than just “citizens,” it may not have been intended to cover every individual walking the streets.
Somewhat amazingly, the Supreme Court hasn’t clarified the issue, despite extensive rulings on the passage of the Voting Rights Act and the adoption of the “one man, one vote” principle. As Justice Clarence Thomas noted in his dissent from a denial of a writ of certiorari in Chen v. City of Houston (2001): The High Court has “never determined the relevant ‘population’ that States and localities must equally distribute among their districts.” The closest the federal courts have come to taking cognizance of this issue was in Barnett v. City of Chicago (1998), where the Seventh Circuit noted that “the dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizen.”
Whether Congress could address by normal legislation the issue of counting “illegal aliens” under the census for apportionment purposes or whether the matter needs to be addressed through a constitutional amendment is an open question—with most legal scholars believing the latter. Regardless, the issue needs attending to. A mixture of constitutional and policy choices has turned the logic underlying the census and apportionment provisions in the Constitution upside down, with consequences that increasingly infringe directly on the core principle of popular consent by distorting the representational and voting power of individual citizens. If liberal self-rule means anything, it means being able to determine—absent considerations of race, ethnicity, or gender—who counts and who doesn’t as a part of the body politic.
Gary Schmitt is director and Rebecca Burgess is program manager of AEI’s Program on American Citizenship.
