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05/26/2018

Illegal Immigration and Congressional Apportionment
Michael Ramsey

At Huffington Post, Sam Levine reports: Alabama Sues To Exclude Undocumented Immigrants From Census Count.  The post references several law professors on the dubiousness of the suit, including me.

Alabama is suing the Trump administration to force the Census Bureau not to count undocumented people as part of the decennial tally used to determine how many seats in Congress each state gets.

The suit signals a continued conservative interest in changing the way the census counts immigrants. In a statement, Rep. Mo Brooks (R-Ala.), one of the plaintiffs in the suit, said apportionment should exclude immigrants and be based on only the citizen population. [Ed.: actually I think the suit is just to exclude people who are in the U.S. unlawfully, not all non-citizens].  Rep. Steve King (R-Iowa) and Kansas Secretary of State Kris Kobach (R) have made similar calls. Missouri lawmakers are considering legislation to base their state legislative districts based only on citizen population.

...

Every 10 years, the census counts all people in the United States, regardless of their immigration status, and that tally is used as the basis to figure out how many congressional seats each state gets. The 14th Amendment says congressional seats should be apportioned based on simply the number of “persons.”

But in a suit filed Tuesday in federal court in Alabama, Brooks and the state’s Attorney General Steve Marshall (R) argue that in the 18th and 19th centuries, the word “persons” would not have been understood to include undocumented people in the country. They argue that including undocumented immigrants in the count to determine congressional representation unfairly allows states with large undocumented populations to have inflated political representation. Alabama is projected to lose a congressional seat after the next census.

Franita Tolson (USC), Pamela Karlan (Stanford) and I are noted as questioning the basis of the suit.  My reported comment is but truncated but basically accurate.  Here's my full comment to Mr. Levine:

I haven't followed this particular suit but I'm familiar with the issue.  I also haven't looked closely at the historical evidence.  That said, I'm very skeptical that there is historical evidence to support Alabama's position.  The ordinary meaning of person obviously included illegal immigrants at the relevant times.  The framers notoriously added a specific clause to limit the counting of slaves (the 3/5 clause) so they plainly thought that absent that clause slaves would count as "persons" for purposes of apportionment.  In the same clause they also specifically excluded "Indians not taxed" from apportionment.  So again they seemed to be thinking of "person" as having the ordinary all-encompassing meaning, and then putting some limitations on what persons would be counted.  If they'd meant to also limit the apportionment to persons lawfully in the country, they could easily have said so, in the same clause.  True, unlawful immigration wasn't a big issue back then because there were few restrictions on immigration -- but there were some (at the state level) so the issue would not have been beyond their understanding.  Perhaps there is some evidence from commentary at the time that would call this textual analysis into question, but I'm not aware of it.  And surely the burden is on Alabama to explain why individuals ordinarily called persons were not "persons" for this purpose.

On further reflection, I should have made clear that mine is a textual/originalist analysis.  And also on further reflection I still think I'm right, although the analysis may be a bit more complicated.  The operative language is Section 2 of the 14th Amendment (which is taken from the original language of Article I, Section 2, with the 3/5 clause dropped):

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.

If there's any ambiguity here, it's in the question of who are persons "in each State" rather than who are "persons."  I'm confident that there's no relevant historical meaning of "persons" that doesn't include all human beings (and, as I noted in my comments, the 3/5 clause confirms this -- the drafters of the original Art. I Sec. 2 language thought slaves were "persons" and would be counted in full for apportionment unless the text expressed a limitation.)  So unlawful immigrants are clearly "persons" -- the question is whether they are persons "in" the State.  I assume travelers not resident in the state, although obviously persons, are not counted for apportionment purposes because they are not "in" the State for purposes of apportionment, even though they may be literally physically in the state on the date of the census.  Perhaps one could similarly argue that persons unlawfully present, even though resident, are not "in" the state in the constitutional sense.

But I think that interpretation is ruled out by the "Indians not taxed" exclusion.  This phrase referred to tribes not under the jurisdiction of the state and the United States, either legally (by treaty) or practically (because they were beyond effective control).  The existence of this exclusion indicates that the drafters understood that these tribes would be "persons in [the] State" for apportionment purposes unless specifically excluded.  It also shows (as indicated in my comments) that the drafters were thinking about categories of persons to exclude from the count -- and if they had concerns about people unlawfully present, they could have added that exclusion as well.  The Alabama suit tries to add a word the framers left out: "counting the whole number of persons [lawfully] in each State."

This, I emphasize, is a textualist/originalist analysis.  I think it is conclusive (scholars who think originalism doesn't yield definite answers to actual litigated cases are encouraged to show why I'm wrong).

A living Constitution analysis, on the other hand, is much stronger for Alabama.  Although there likely were some persons unlawfully present (under state law) at the time of the Amendment, it was undoubtedly a very small number.  Material restrictions on lawful immigration weren't adopted until later, and the existence of large numbers of undocumented residents is a recent phenomenon.  Thus it made sense for the framers not to bother excluding this category, because it wouldn't materially affect the count and surely wouldn't affect the apportionment.  Now, matters are entirely changed -- it may well be, as Alabama argues, that excluding the category would affect the apportionment.  So perhaps Alabama can argue that, similar to "Indians not taxed" in the nineteenth century, the category of undocumented residents represents a category of persons not a full part of the political entity, and thus appropriately excluded from apportionment as not fully "in" the state.

Of course there are living Constitution arguments in response as well.  The outcome would mostly come down to whether one thought undocumented residents ought to be counted for apportionment as a policy matter.  My point is that a textualist/originalist approach seems to give a more definite and objective answer.  (And note that the two other professors quoted in the article as opposing the suit also give originalist-oriented responses).

(Thanks again to Mr. Levine for letting me know about the suit and getting me thinking about it).