What the Citizenship Question on 2020 Census Means for American Federalism
The Supreme Court will begin to hear arguments on April 23 on whether the Trump administration should be allowed to include a question about citizenship status on the 2020 Census.
A federal judge ruled in January that—while perfectly constitutional—the president’s commerce secretary didn’t follow certain administrative procedures correctly when he filed to reinstate the citizenship question, which was removed in 1950.
On the one hand, this lawsuit is a mere legal dispute about administrative law minutia in the federal court; on the other hand, it involves a fundamental political debate about sovereignty and federalism in the court of public opinion.
Seventeen states, seven cities, and the U.S. Conference of Mayors have all sued the Trump administration to prevent inclusion of the citizenship question on the census. The plaintiffs claim that the presence of the question will deter illegal immigrants from filling out the census form at all, and so, they contend that the reported population numbers will be lower on paper than they in fact are.
Why would this be a problem? It poses a fiscal problem, because the census numbers determine how much federal money each state receives. More significantly, though, it poses a political problem, because the census numbers determine how many representatives in Congress each state receives.
In short, the census doles out shares of economic and political weight to each state, and thus, the citizenship question controversy is a concern about justice among the states.
The Drift of Representation and Sovereignty
The Constitution requires that the federal government conduct a census every 10 years, primarily for the purpose of adjusting the number of representatives in Congress according to the fluctuations in state populations. Because the members of the House of Representatives is fixed at 435, if one state’s population substantially increases, a representative is taken from a state with a lower population and given to the state with a greater one.
In other words, apportionment has become a zero-sum game, where some states gain and other states lose slices of political sovereignty after every census.
Naturally, then, every state has an interest in maximizing the number of people counted within it for the census. For this reason, James Madison noted in “The Federalist Papers” that “it is of great importance that the states should feel as little bias as possible, to swell or to reduce the amount of their numbers.”
And yet, demographic studies show that the massive influx of illegal immigrants into certain states during the past few decades has created just such a bias in those states for swelling their numbers. As currently worded in the Constitution, the census counts “all persons,” regardless of citizenship status. Accordingly, foreigners—both legal and illegal—living in the United States at the time of the census are all eligible to be counted and are thus effectively represented in Congress.
Unsurprisingly, states with high populations of illegal immigrants and noncitizen legal residents have increased their number of representatives and their share of federal dollars. Accordingly, states with fewer illegal immigrants and legal noncitizen residents have had representatives and federal dollars stripped from them.
According to a 2013 study by the Center for Immigration Studies, nine states lost a representative after the 2010 census, and they were absorbed by four other states—with California taking five.
In some parts of the union, this adjustment calculus is maxed out; for example, Montana has only one representative left, so it has no more representatives to lose. Meanwhile, California has 53 and is likely to take two more after the 2020 census, and possibly three more after 2030.
Montana has been bled dry, so from which states will California take representatives after 2020? It’s likely that Indiana, Iowa, Kansas, Minnesota, Ohio, Oregon, Alabama, and North Carolina will each lose a seat during the next 12 years. The incumbent representatives—some of them Democrats—will simply be out of a job, and their congressional districts will be absorbed by neighboring districts.
Turning the Constitutional Titanic
This demographic shift has had a very real impact on U.S. politics, and the trends are slated to continue. Each state will still have two senators (at least for now), but the political power of California and New York will likely increase, and that of the rest of the states will likely decrease in the near future.
But the American people in the states affected by these changes aren’t powerless. In May 2018, the state of Alabama and Rep. Morris Brooks (R-Ala.) filed a suit against the U.S. Commerce Department. In a press releaseabout the case, Alabama Attorney General Steve Marshall asserts that by counting noncitizens in the 2020 census, Alabama will lose its “rightful share of political representation” in the form of a representative in Congress as well as an elector in the electoral college.
Marshall asked a common-sense question: “If an individual’s presence in our country is in violation of federal law, the question is why should the states in which they reside benefit from their illegal status?” It’s past time that the American people as a whole started asking this same question and closed this loophole in the logic of American federalism that is slowly draining sovereignty from the American people.
In “Federalist 58,” Madison used the word “inhabitants” to describe those persons the census is meant to count for apportionment. This word is ambiguous because it doesn’t specify that such persons must be citizens.
But Madison made his intention clear. In that same essay, he noted that the Constitution is federal and thus, contains a “peculiarity” that consolidated nations don’t have. “The peculiarity lies in this,” he writes, “that one branch of the legislature is a representation of citizens; the other of the states.”
A straightforward rendering of Madison’s opinion shows that he—the father of the Constitution—understood the census as a tool for adjusting apportionment to citizens only, and so should we.
Clifford Humphrey is originally from Warm Springs, Georgia. Currently, he is a doctoral candidate in politics at Hillsdale College in Michigan. Follow him on Twitter @cphumphrey.