Today I’m going to be separating myself from some of my progressive friends on whether or not the Trump administration can ask the Census Bureau whether a respondent is a United States citizen as part of the Decennial Census questionnaire.
I think they can.
Now, don’t get me wrong, I get that this is part of the Trump administration’s effort to get minorities and immigrants undercounted, and maybe even part of their overall plan to suppress the votes of those groups who are not favorably inclined towards Republicans. I totally get that.
But this is also a constitutional argument.
So, the Census is required by the Constitution through Article I, Clause 3 of the Constitution, which says the following in pertinent part:
|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, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.|
More specifics relative to the enumeration are set forth in 13 U.S. Code 1 et seq. Under federal law, the Bureaus is tasked with counting citizens, non-citizen legal residents, non-citizen long-term visitors, as well as undocumented immigrants. The Census Bureau bases its decision about whom to count on the concept of “usual residence,” defined as the place a person lives and sleeps most of the time.
Now let’s remember that the purpose of the census was originally the apportionment of the House of Representatives, and let’s remember that non-citizens can’t vote. So the citizenship question is certainly relevant to the census.
On the other hand, the census is now used for a number of other things, principally the apportionment of federal funds, and for that purpose all persons residing here are relevant.
Back in 1980, and fresh out of college, I was a crew leader for the Decennial Census. At the time the Census had a great deal of difficulty (as it still does) in counting the homeless population (which, needless to say) was chronically undercounted. But there were ways at getting at the problem, including using census takers who used to be homeless.
Same thing with the immigrant population. There are ways that the Census Bureau can about trying to count them, and offering them maximum anonymity would be a start.
Some populations are always going to be harder to count than others. Like the homeless. Even without the question on immigration, it’s not as if undocumented aliens are going to volunteer to be counted. What do they care about the apportionment of federal dollars? They care about keeping their asses here in the United States, and no count is going to help them do that.
Of course, even if I think the Trump administration is on legally defensible ground in this one particular case, that didn’t stop habitual liar Sarah “the Huckster” Sanders from lying about the Census anyway. She claimed that the immigration question has been part of “every census” since 1965.
It pains me to have to point out to Ms. Sanders that there was no decennial census in 1965 (as those are only taken every decade) and that the immigration question has not been part of the census since 1950. It wasn’t “taken out” (as Sanders claimed) for the 2010 census.
 The three-fifths provision were, of course, in reference to slaves who were brought to this country, and did not count as “full persons” until much later.