The Department of Commerce last night announced that the 2020 Census will, for the first time since 1950, ask all respondents whether they are a legal resident of the United States. The move has already been met with a lawsuit from the state of California, and pre-emptively denounced by five former directors of the Census Bureau as putting "the accuracy of the enumeration and success of the census in all communities at grave risk."
The official justification for the move, as enumerated by Commerce Secretary Wilbur Ross in a memo, is to produce more complete data so that the Justice Department can better enforce the Voting Rights Act (VRA). In doing so the secretary is explicitly prioritizing a tertiary Census Bureau function over its constitutional raison d'être, which is to provide an accurate decennial head count—including of non-citizens and other non-voters—in order to reapportion the House of Representatives. "The Department of Commerce is not able to determine definitively how inclusion of a citizenship question on the decennial census will impact responsiveness," Ross wrote. "However, even if there is some impact on responses, the value of more complete and accurate data derived from surveying the entire population outweighs such concerns." This is a remarkable admission.
Citizenship status was included on Census forms until 1950, and was asked in the long-form questionnaire (sent to one in six households) in 2000. In addition, the Bureau's annual American Community Survey, which samples 2.6 percent of the population (and whose results had previously been used for Voting Rights Act enforcement), asks the legal-or-not question. So what's the problem with reinstating it now?
"There are great risks that including that question, particularly in the atmosphere that we're in today, will result in an undercount, not just of non-citizen populations but other populations that are concerned with what could happen to them," 2013-2017 Census Bureau director John Thompson told CityLab last month. "That is a tremendous risk."
Such sentiments are not limited to Democratic appointees. "It would be a horrendous problem for the Census Bureau and create all kind of controversies," 2008-2009 director Steve Murdock told Mother Jones. Added 1973-76 director Vincent Barabba: "It is simply inconceivable to me there would not be a very high level of anxiety around that question….[It's] beyond comprehension at this point. It would be really bad."
And there is plenty of reason to suspect that the Trump administration knows all this full well.
Households and communities that contain illegal immigrants already have ample reason to avoid contact with the government right now. Immigrations and Customs Enforcement (ICE) has been targeting sanctuary cities for deportation raids, and conspicuously showing up at local courthouses to catch suspected aliens in the act of interacting with the legal system. Census results about disfavored populations have not been sacred historically—they were used by Franklin Delano Roosevelt to intern Japanese-Americans, and by Woodrow Wilson to go after draft-dodgers.
Further, we know that key Trumpworld figures have been trying to de-link the Census headcount of illegal immigrants from congressional reapportionment, because they say so out loud. Kansas Secretary of State and gubernatorial candidate Kris Kobach, last seen shambolically defending himself in a trial over his state's law requiring proof of citizenship to vote, wrote a Breitbart News op-ed in January making the dual argument that 1) the Census should ask about citizenship, and 2) illegal immigrants should not be taken into account when drawing up House maps. (Kobach, you might recall, was the de facto head of the Presidential Advisory Commission on Election Integrity that was dissolved in January after a series of debacles.)
The problem both with Kobach's legal analysis and the common who cares? response to the prospect of undercounting illegal immigrants is that it goes against the plain meaning of the Constitution and the previous 120 years (at minimum) of practice.
The original text of the Constitution stated that
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. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
The notorious three-fifths compromise was wiped out by the 14th Amendment, which changed the language to: "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." You'll note who was included the head-count: women, who still had another half-century before they could vote. As National Review legal analyst Matthew J. Franck wrote in 2010,
[V]oting rights are not and never have been the relevant consideration in counting population for congressional representation. Like women in most states before the Nineteenth Amendment, and like minor children even today, the alien is counted because he is represented in Congress, even if he cannot participate in electing members of it.
Can we say of the illegal immigrant, though, that he is represented in Congress, even in some Burkean "virtual" sense? That is an interesting question of political theory, perhaps. And we might say that the important thing in practice is to prevent it from becoming a question–by dealing with the problem of illegal entry to the country. But for constitutional purposes, the question hardly arises. For "the whole number of persons in each State" would seem, on its face, to include everyone residing therein, illegally and legally alike.
Waving away the constitutional link between illegal-immigrant head-counts and congressional reapportionment has been on the restrictionist wishlist since at least the 1980s, and certainly has resonance in the broader population to this day, but that doesn't make it one inch closer to being a reality. For the Kris Kobaches of the world, diminishing the political power both of illegal immigrants and the communities they live in is the next best thing, regardless of the negative consequences on perfectly legal residents. There's a reason why Donald Trump's initial pick to run the Census (since withdrawn after controversy) was not a demographer, but a GOP gerrymanderer.
The Republican Party has dropped the pretense of colorblind analysis, constitutional fealty, and opposition to Census mission creep, and is now openly using data collection for smash-mouth politics. If the move survives legal challenge, the result will likely be an inaccurately drawn House map, more power tilted toward Republicans, and crappier survey data. In other words, mission accomplished.