Most of the Constitution consists of “cans” and “can’ts.” There are only a few “musts” — things that the government has to do. One of the big musts is that, at least once every ten years” the government must conduct the census — or, as the Constitution phrases it in Article I and the Fourteenth Amendment, an enumeration of the whole number of persons in the United States. The sole exception to being counted is “Indians not taxed.”
Now despite this plain language, Republicans do not like that persons includes those who are not citizens, particularly those who have not lawfully entered this country. While the total number of unlawful immigrants is small, they tend to be concentrated in urban areas that elect Democrats. (Of course, this tendency is offset by the large margins by which Democrats win urban areas.) While there may be some electoral college disadvantages to not counting unlawful immigrants, Republicans have tended to conclude that the advantage in terms of the U.S. House and state legislatures outweighs any electoral college disadvantages. Despite this clear command, the lawbreaker-in-chief has issued a memorandum asking the Census Bureau to exclude unlawful immigrants from the count used to apportion the House of Representatives.
Aside from the lack of legal authority for this directive, it is also unconstitutional. Most of the arguments that I have seen out there supporting this position are simply misplaced. Yes, other countries use different mechanisms for apportioning their legislation (for example, many use registered voters), but that is a policy argument supporting a constitutional amendment. Policy arguments over what the Constitution should say (whether about redistricting or the electoral college) does not alter what the Constitution actually says.
Other arguments are based on anachronisms. The Constitution does not distinguish between lawful immigrants, unlawful immigrants, and citizens in terms of the census. In part, this reflects the status of federal law at the time of the adoption of the Constitution and the Fourteenth Amendment. While today, we have very detailed laws on immigration and becoming a citizen, these laws are mostly from the last one hundred years. For the first one hundred years, other than provisions barring certain races and ethnic groups from becoming citizens, the law did not limit immigration. Simply put, there was no such thing as an unlawful immigrant in the 1780s and 1860s. And, you only had to reside in the U.S. for a short period to become a citizen — which only took convincing your local judge to admit you to citizenship. As far as the Constitution is concerned, the only issue is whether somebody is residing in the United States.
Besides trying to completely exclude unlawful immigrants from the count, the Census Bureau is planning to end field operations a month earlier than planned. In the recent past, the census had two phases: 1) a mail-in phase, and 2) a field phase. This year, the census also included an electronic submission phase prior to the mailed census. While, in a perfect world, every residential address would respond to the census and every person would have lived at such an address, that is simply not the way things work. So the census has always had a field operation to make contact with those addresses and to try to count difficult to reach segments of the population.
Needless to say, Covid-19 has caused problems with the field operations. So many had expected the Census Bureau to ask for an extension on the due date for the redistricting numbers. Instead, the Census Bureau is planning to end its field operations a month early. Now, there is no indication that the field operations are anywhere near a complete count. Now maybe miracles will happen and we will have a complete count by the end of September, but almost nobody expects that too happen. Instead, the purpose is to have the count done (on time) before the end of this Administration. And, simply put, the hardest to count individuals tend to live in urban areas. Again, an incomplete count will probably favor Republicans when we do redistricting next year.
It would be bad enough if a poorly conducted census screwed up the numbers for redistricting, but a lot of federal aid to state and local governments are based on population. So an incomplete count will result in funding being shifted away from the areas that need it the most to other areas. The fact that an undercount will benefit Republican areas while hurting Democratic areas is, of course, a benefit in the eyes of this Administration. For over 200 years, the census has been based on the idea that an accurate count matters and that we want to know the truth about the population of this country. In this Administration, facts and the truth are irrelevant. Instead, what matters is who wins. And if that takes cheating, Trump has been doing that his entire life.
