Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes [January 20, 2010] [open pdf - 195KB]
"In the 2010 decennial census, the Census Bureau will attempt to count the total population of the United States. This includes, as in previous censuses, all U.S. citizens, lawfully present aliens, and unauthorized aliens. Some have suggested excluding aliens, particularly those who are in the country unlawfully, from the census count, in part so that they would not be included in the data used to apportion House seats among the states and determine voting districts within them. [...] From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion House seats among the states. Such legislation would have either amended the Census Clause of the Constitution or enacted or amended federal census statutes. In the 111th Congress, legislation has been introduced that uses both approaches. The Fairness in Representation Act would statutorily exclude aliens from the population count for apportionment purposes (H.R. 3797 and S. 1688). Under the above analysis, it would not appear to be constitutionally sufficient for Congress to amend the federal census statutes in such manner. Meanwhile, H.J.Res. 111 would take the other approach and amend the Constitution so that only U.S. citizens would be counted in the apportionment calculation. Other legislation in the 111th Congress would not raise the same constitutional issues since they would not appear to require the exclusion of any individuals for apportionment purposes. An amendment introduced by Senator Vitter to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 (S.Amdt. 2635 to H.R. 2847), would have cut off funding for the census unless the census form included questions regarding citizenship and immigration status. The amendment was subsequently ruled to be non-germane. On the other side of the issue, the Every Person Counts Act (H.R. 3855) would prohibit the Census Bureau from asking about U.S. citizenship or immigration status."
CRS Report for Congress, R41048
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