Foreign visitors are not counted, but foreign U.S. For instance, tourists are counted at their homes. The Residence Rule makes many other determinations, including decisions as to who should be counted in which state. In fact, the department has decided resident illegals are included. The second question concerns the power of the secretary of commerce, to whom Congress has given responsibility to conduct the census “ in such form and content as he may determine.” If the Constitution is indeterminate on the question of including or excluding illegal immigrants from the apportionment count, and Congress has been mute, then that seems to leave it up to the secretary. The Commerce Department Has a Vital Role to Play Instead of being added to the census, they should be subject to immediate deportation. No matter your method of constitutional interpretation, however, it is hard to argue that the Constitution requires counting illegal immigrants.
The drafters clearly wanted to extend the count beyond citizens but had no need to distinguish further. In 17, the nation’s borders were open, and citizenship easily obtained, so the category “illegal alien” did not exist. So, as a matter of constitutional interpretation, does the phrase “whole number of persons in each State” include illegal immigrants? Without getting too into the weeds, the best conclusion is that it does not. The Enumeration Clause, as modified by the 14th Amendment, says representatives are apportioned among the states “according to their respective numbers,” as determined by “counting the whole number of persons in each State, excluding Indians not taxed.” The clause goes on to require a decennial enumeration-we know this as the census. The answer to the first question depends on a proper interpretation of the Constitution.
Constitution require that illegal immigrants be counted for purposes of apportioning House seats and electoral votes? Second, if the Constitution is ambiguous, can the Department of Commerce decide whether to include illegal immigrants? Third, do Supreme Court precedents on one-person-one-vote require that illegal residents be excluded from the apportionment count because their inclusion dilute the votes of citizens and legal residents? Three essential questions are involved in this situation. What Does the Constitution Say on the Issue? Sure enough, there is a lot to see here, and the answer underneath it all is illuminating. The law may be an ass, per Charles Dickens, but when a result so contradicts common sense it should make us pause and take a closer look. The common sense response to these conclusions is: excuse me? To which the bureau would likely reply that the Constitution requires it.
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