A federal court may have declared immigration arrests unconstitutional
Trump is wrong on census memo — but has a point
President Trump signed a memorandum last week that would preclude undocumented immigrants from being counted towards the appointment of congressional seats. The administration's plan to count only citizens in this portion of the 2020 Census almost certainly will not survive legal challenges from state governments. Indeed, the Constitution, in Article I, Section 2, makes clear why: "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."
In other words, the count must include all residents, not just citizens. The only time in American history when not all residents were counted for the census was prior to the Civil War - when slaves, who could not vote, were counted as three-fifths of a person.
No doubt, there's a political dimension behind Trump's proposed approach. A Pew Research Center analysis concludes that states with fewer immigrants, such as Ohio, likely will retain congressional seats they otherwise might lose should Trump prevail. But this is not to say that the administration does not, implicitly, make an important point. Because Democrats hold more congressional seats in immigrant-rich states such as New York and California, they represent fewer citizens. And because each congressional district must have roughly the same number of residents, that means, in turn, that many Democratic members actually represent fewer voters than do Republicans.
Consider New York's 14th Congressional District - represented by Rep. Alexandria Ocasio-Cortez (D). Fully 46 percent of its residents are foreign-born, and 67 percent speak a language other than English at home. One can't know for certain whether that means fewer residents are eligible to vote - the census does not ask about citizenship, despite an earlier Trump administration effort to do so - but it certainly increases the likelihood that that's the case. In contrast, 89 percent of residents of the 1st Louisiana district, represented by Minority Whip Steve Scalise (R), speak only English at home and only 6.9 percent are foreign-born.
These are not exceptional districts. A 2018 Axios analysis found that 10 Democratic districts include a foreign-born population of higher than 40 percent, compared with just two Republican districts. Only 11 Republican seats have at least 20 percent foreign-born residents, compared with more than 50 Democratic seats. A 2019 Bloomberg analysis found that, on average, 19 percent of residents in seats held by Democrats are foreign-born, compared to just 7 percent of those in Republican-held seats.
Changing the nature of census enumeration, finds Pew, would have significant implications: "If unauthorized immigrants were excluded from the apportionment count, California, Florida and Texas would each end up with one less congressional seat than they would have been awarded based on population change alone. California would lose two seats instead of one, Florida would gain one instead of two, and Texas would gain two instead of three, according to analysis based on projections of Census Bureau 2019 population estimates and the Center's estimates of the unauthorized immigrant population."
Pew continues: "Alabama, Minnesota and Ohio would each hold onto a seat that they would have lost if apportionment were based only on total population change."
All this has implications that go well beyond the extent of any one state's representation in Congress, as important as that is. It means that Democrats represent fewer voters - that it takes fewer votes for some to be elected. And it means that millions of U.S. residents are represented by members of Congress for whom they are not able to vote. It is not hyperbole to call this taxation without representation.
The fact that the Trump census memo likely will not lead to a change in the census doesn't mean the status quo is right. Far better for Democrats - and Republicans - to take a page out of the early 20th-century policy playbook and promote naturalization. That would mean promoting and making easily accessible English-language learning. It would mean reducing the cost of the citizenship test - currently an unconscionable, non-refundable $725 fee. That's no small barrier for the immigrant hotel worker, house cleaner, or casino cook, all of whom told me exactly that on a Nevada visit to the English Language Learners In-Home Program, which provides volunteer home tutors.
The politics of congressional representation gets our attention - but, in the long term, maintaining a shared and inclusionary culture matters more. Limiting immigration is a defensible way to promote immigrant assimilation - what used to be called "Americanization" - as Congress did between the 1924 Johnson-Reed Immigration Act and the 1965 Hart-Cellar Immigration and Naturalization Act. However, limiting immigration alone does not create a stronger or more united society and nation. Indeed, promoting citizenship - and making the path to naturalization easier - would be a more effective way to maintain a culture of shared American values, while embracing our history as a country that was largely built on the contributions of immigrants.