RUTHFULLY YOURS

Democrats’ unwillingness to secure our borders is evidenced in their grimaces during the immigration portion of President Trump’s most recent State of the Union and scores of their members hocking superficial “smart walls,” calling to abolish Immigration and Customs Enforcement (ICE), and supporting sanctuary cities. This all underscores their antipathy toward national sovereignty and citizenship.

Yet to the left’s credit, they persistently push such policies until they achieve victory, which means more political power, territorial integrity, and fidelity to Americans and legal immigrants be damned. Exhibit A, which has flown largely under the radar, is Democrats’ opposition to the Trump administration’s plan to reinstate a citizenship question in the 2020 census.

As a reflection of how big of a priority this is for Democrats, Sens. Bob Menendez, Cory Booker, Mazie Hirono, and Minority Leader Chuck Schumer, along with a coterie of presidential contending cosponsors, reintroduced the deceptively dubbed “Every Person Counts Act” as one of their earliest actions in this new congressional session. This bill dovetails with leftist activist groups’ ongoing litigation against the Trump administration on the citizenship question, which the Department of Justice (DOJ) has successfully asked be fast-tracked to the Supreme Court.

Democrats’ legislation would stipulate that, on the census, the “Secretary [of Commerce] may not include any question or otherwise elicit any information regarding United States citizenship or immigration status.”

At first glance, one might think the inclusion of the question, “Is this person a citizen of the United States?” is uncontroversial. By statute and jurisprudence, the Commerce Department, in which the Census Bureau sits, may ask (and has asked) questions in order to compile statistics that go far beyond those intended to get a simple head count, provided they serve a constitutional purpose.

The DOJ has argued that accurate citizenship statistics are necessary to properly enforce certain provisions of the Voting Rights Act. Barack Obama-appointed Federal Judge Jesse Furman who, in the aforementioned recent decision in the Southern District of New York, blocked the Trump administration from adding the citizenship question, concedes that the question is “not inconsistent with the Constitution…” Common sense would dictate that, of all the statistics one would want to compile about a nation, citizenship counts would be paramount.

But Democrats contend asking the citizenship question will lead to an undercount on the U.S. census because a material number of noncitizens will refuse to respond to it, thereby creating a concomitant series of harmful effects in locales with large illegal immigrant populations. This argument flies in the face of logic and history.

Law Enforcement Won’t Target Illegals

Fear-mongering Democrats gin up the idea that illegal immigrants could be targeted by law enforcement if they out themselves on the census, and will thus refuse to respond to it. Yet the Trump administration is not proposing any question about noncitizen legal status. The only option for noncitizens to select in response to the citizenship question reads: “No, not a U.S. citizen.” That is, people who are not citizens can only respond that they are noncitizens.

So why would anyone fear checking this box? Those here unlawfully get the protection of being lumped with lawful residents. A respondent cannot incriminate him- or herself.

Democrats have been perfectly fine asking a citizenship question of U.S. households as recently as the last time the census was issued, under the Obama administration in 2010. The question was part of its American Community Survey (ACS), which was delivered to one in 38 households. The ACS replaced the longform census questionnaire, delivered to one in six households in 1980, 1990, and 2000.

That questionnaire asked for an individual’s birthplace, and for foreign-born persons whether they were naturalized (in 1980), or citizens (in 1990 and 2000). The government collected data about people’s citizenship status from every household on each decennial census issued from 1820 to 1950, save for 1840.

Democrats have said issuing the citizenship question on the census, in particular under President Trump, is likely to yield a lower response rate. In a prior article, I showed that one such study on which that assertion is based is unconvincing. Readers can judge the research for themselves, but the logic and history undermines the studies the litigants against the Trump administration cite. To put it simply, a census citizenship question should not prevent “every person from counting,” in the parlance of Senate Democrats.

The one decisionmaker whose opinion is supposed to matter by law––Commerce Secretary Wilbur Ross––actually concurred. In evaluating the evidence on whether including the census citizenship question would lead to an undercount, Ross stated “neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially…the Census Bureau’s analysis did not provide definitive, empirical support for that belief.” Ross added that even if there was “an impact on responses, the value of more complete and accurate data derived from surveying the entire population outweighs such concerns.”

But in the Trump era, the wisdom of activist groups and judges takes priority over the individuals to whom these powers have been lawfully delegated. Judge Furman ruled against the Trump administration––after accepting the challenge of litigants whose standing was questionable––on grounds that he disagreed with Ross’s judgment, and how he came to it, as a violation of the Administrative Procedures Act.

A Political Power Play Seems More Likely

These matters of policy and the law obscure the pertinent issue at play here: Democrats’ cynical disregard for law-abiding Americans in favor of noncitizens. The real reason Democrats fear lower response rates on the census is because higher noncitizen response rates gives Democrats more political power.

This is because the census is essential for determining how U.S. House seats, presidential electors, and intrastate seats are apportioned, as well as how hundreds of billions of dollars in federal funds are allocated. Disproportionate numbers of noncitizens, who tend to reside in heavily blue areas, mean disproportionate political representation and largesse for those blue areas.

The left is not hiding that this is why it fears a census citizenship question that might deter respondents. In fact, this was an essential part of the case made by the litigants in the Southern District Court of New York against the Trump administration. On apportionment, Judge Furman opined:

The Court finds by a preponderance of the evidence that the addition of a citizenship question will cause or is likely to cause several jurisdictions to lose seats in the next congressional apportionment and that it will cause another set of jurisdictions to lose political representation in the next round of intrastate redistricting.

With respect to the census-derived allocation of approximately $900 billion in federal funds across at least 320 programs as of 2016, he added: “A net undercount of people who live in noncitizen households will also cause states (and their residents) to lose access to federal funding from domestic financial assistance programs that allocate funding based on census-tied geographic formulas.”

Could it be that Democrats’ political and legal opposition to the census citizenship question, which highlights the general significance of the census, is designed to drive response rates higher regardless of what happens to the citizenship question? Certainly, Democrats would like to strip the citizenship question altogether. But if the left loses the fights over the citizenship question, in hyping the issue, at least it will have signaled to all people, including illegal immigrants, the importance of responding to the census.

There is perhaps one real hidden downside for Democrats to including the citizenship question, if you believe their claims of reduced response rates are dubious. If we do not have a census undercount, but an accurate count of noncitizens––in line with the high response rates to the ACS––Americans might see just how much their representation is distorted by noncitizens. Some will see their political power increased. Others will see their political power diluted. Does that strike any law-abiding citizen as fair?

Further, the census citizenship question provides another incentive for those on the left to refuse to secure the borders, reform the asylum system, and curtail sanctuary city policies. Democrats can continue to tilt the political playing field in their favor even without legalizing illegal immigrants they believe will be future Democrats simply by including illegal immigrants in the census, a population that numbers at least 10 to 11 million.

Opposing Inclusion On the Basis of Principle

Finally, a more fundamental question merits national discussion. Why should the census include noncitizens in the first place?

Article I, Section 2 of the Constitution calls for a census count to apportion representatives and direct taxes “among the several states…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.” This language was modified after the abolition of slavery under Section 2 of the 14th Amendment, which requires that apportioning be based on “the whole number of persons in each state, excluding Indians not taxed.”

But note that the preceding Section 1 of the 14th Amendment begins “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Is it not reasonable to assume that the “whole number of persons in each state” would solely consist of “persons born or naturalized in the United States, and subject to the jurisdiction thereof?” The same holds true for the Constitution, which begins, “We the people of the United States,” not, as constitutional scholar John Eastman puts it “[We] the people of the world,” or “[We] any foreign nationals who happen to be in the United States when a census is taken.”

Legal fights touching on the issue of the definition of “persons” have failed to conclusively settle the argument. There is a legislative solution as well. Rep. Warren Davidson (R-Ohio) recently reintroduced a constitutional amendment, the Fair Representation Amendment, that apportions representatives solely “by counting the number of persons in each State who are citizens of the United States.” Of his amendment, he states:

Ohio citizens should not have their voices diminished by other states harboring illegal aliens in sanctuary cities…Many Americans don’t even realize that through current census practices, noncitizens dilute the influence of citizens – especially in Ohio and other states with lower noncitizen populations. The status quo of awarding states greater representation for this illegal behavior subverts our Constitution. Proper census calculations are needed to ensure that every citizen’s vote counts. That is what the Fair Representation Amendment seeks to accomplish.

This amendment will surely languish in Pelosi’s House, as it has also in Republican-controlled Houses.

Excluding noncitizens from the census count may very well be a legal and political loser, given the state of today’s courts and political incentives. But it is incumbent upon those who believe in the rule of law and the sanctity of citizenship to challenge the status quo judicially and legislatively.

Members of the political establishment who cling to the status quo should be put on record and made to answer the following question: Why should noncitizens, including illegal immigrants, be able to increase the political power of some Americans while decreasing the political power of others?