Arguments over whether to count illegal aliens in congressional apportionment may be moot

On July 21, 2020, President Donald Trump issued an executive order to exclude undocumented aliens from the apportionment base that will be established this year by the 2020 Census. Apportionment is the process of dividing up the 435 seats in the House of Representatives among the 50 states according to population.

This has resulted in a flurry of lawsuits claiming that the order is unconstitutional, which seems to happen every time Trump issues an executive order on immigration. These challenges haven’t had much success when they reach the Supreme Court.

The most recent one claimed that adding a citizenship question to the 2020 Census was unconstitutional. The Court rejected that argument, but remanded the case on the ground that the Trump administration had violated the reasoned explanation requirement of administrative law.

In any case, those challenging the order should consider whether it is even possible for Trump to implement it before they waste a lot of time on unnecessary litigation — I don’t think it is.

The background

Article 1, Section 2, of the United States Constitution requires a census of the United States population every ten years to apportion seats in the U.S. House of Representatives and votes in the Electoral College.

The Electoral College is the formal body that elects the president and the vice president. Each state has as many “electors” in the Electoral College as it has Representatives and Senators in Congress, and the District of Columbia has three.

Steven A Camarota and Karen Zeigler, point out that apportionment is a zero-sum system.  When immigration adds more population to some states than to others, it redistributes political power in Washington.

According to Trump, States that adopt policies which make it easier for undocumented aliens to enter this country unlawfully and hobble efforts to enforce the immigration laws should not be rewarded with greater representation in the House of Representatives.

For instance, Trump says current estimates indicate that one State [California] has approximately 2.2 million undocumented aliens and that if undocumented aliens are included in determining the upcoming apportionment, it could get two or three more congressional seats than it would otherwise.

The estimates

How likely it is that a large enough number of undocumented aliens will participate in the 2020 Census to make their participation an issue?

This question can’t be answered without knowing how large the undocumented alien population is.

If there are only a few thousand of them, there would be no reason to think that they might skew the results of a country-wide census in a country as large as the United States. If there are 50 million of them…

But the truth is that we have no idea how many there are.

Pew Research Center’s (PEW) estimates of the undocumented alien population are highly respected — even the Congressional Research Service relies on them.

PEW uses a process developed by Jeffrey S. Passel with former colleagues at the U.S. Census Bureau and the Urban Institute. It’s known as the “residual method” for estimating the number of unauthorized immigrants living in the country.

The same approach is taken by the Migration Policy Institute (MPI), and the Federation for American Immigration Reform (FAIR).

The residual method starts with the Census Bureau’s annual American Community Surveys (ACS), which are used to estimate the number of foreign born people in the United States. Then, an estimate of the number of lawful immigrants in the United States is subtracted from the foreign-born population estimate, and the remainder is the estimate of the undocumented alien population.

In other words, Undocumented Immigrants (U) = Total Foreign Born (F) — Estimated Lawful Immigrant Population.

Using this method, PEW estimated that there were 10.5 million undocumented aliens in the U.S. in 2017; MPI estimated that there were 11.3 million in 2016; and FAIR estimated that there were 14.3 million as of 2019.

But the ACS surveys are sent each year to a rotating sample of only 2.6 percent of the American households, which amounts to approximately 3.5 million households. I doubt that such a relatively small survey has much statistical significance in a country as large as America, which has more than 330 million people.

Also, there is reason to doubt that many undocumented aliens participate in the ACS survey — and whether the ones who do answer the questions honestly.

Despite statutory protections which prevent the Census Bureau from sharing information with law enforcement and other government organizations, interviews and focus groups conducted by the Census Bureau indicate that immigrants are afraid that their responses will be used to identify and penalize them or their undocumented household members.

Such fear is particularly likely with respect to the ACS survey because it includes questions about race, Hispanic origin, place of birth, citizenship, and when a person came to live in the United States.

In other words, the actual size of the undocumented alien population may be much higher than the estimates indicate — or much lower.

And there is no way to know the rate at which the undocumented alien population increases each year either.

DHS tries to keep track of how many aliens make illegal entries along the 1,954-mile Southwest border, but its records are based on the number of illegal crossers the border patrol apprehends and the number of got-aways. “Got-aways” are aliens who are observed making an illegal entry but are not caught.

DHS doesn’t have any way of knowing how many aliens succeed in making an illegal crossing without being detected, and there could be a lot of them on a border that’s nearly 2,000 miles long.

Unenforceable

Trump’s main problem, though, is that there is no way for him to enforce his order.

How is he going to identify the undocumented aliens who participate in the Census?

I just filled out and submitted the 2020 Census questionnaire online. The requested information indicates my race, but it does not indicate whether I am an alien — or if so, whether I have lawful status.

I will be very surprised if Trump’s executive order results in the exclusion of undocumented aliens from the apportionment base that is established by the 2020 Census.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.