Illegal aliens will be counted in the 1990 census—that’s right, illegal aliens. As a result, one or more states with a disproportionately large number of illegal residents will gain seats in the House of Representatives at the expense of states with few illegal immigrants. According to calculations by the Congressional Research Service, the inclusion of illegals in the 1980 census caused Georgia and Indiana each to lose one seat to California and Texas. During the next reapportionment of seats in Congress, one or more of the following states are expected to lose representation because of their relative lack of illegal aliens—Pennsylvania, North Carolina, West Virginia, Minnesota, Wisconsin, Kansas, Michigan, and Georgia.

This de facto inclusion of illegal aliens in the political community distorts our system of government in the same way as the counting of slaves, even Vs of them, did before the Civil War. Since illegals almost never vote, an individual citizen in California gets more Congressmen for his vote, as it were, than a citizen in Indiana. Congressional districts with large numbers of illegal aliens are therefore similar to the old “rotten boroughs” of England, where a handful of people were able to elect a member to Parliament who had the same authority as a member elected by thousands of voters. And since a state’s electoral votes are based on the number of seats it has in the House of Representatives, the inclusion of illegal aliens in the census distorts even the presidential election, potentially changing the outcome in a close race.

To rectify this, Congressman Thomas Ridge (R-PA) sought in October to amend the bill appropriating funds for the Department of Commerce (which oversees the Census Bureau) to require that illegal aliens not be counted in the census for purposes of congressional apportionment. This was the same amendment introduced by Senator Richard Shelby (D-AL) and included by the Senate in its own version of the funding bill. However, Attorney General Thornburg and Secretary of Commerce Mosbacher said they would recommend that the President veto the bill, which also funded the Justice and State Departments and the entire federal judiciary, if it included the provision on illegal aliens. The provision was defeated on a procedural vote by 232 to 184.

This was probably the last in a series of legislative and judicial efforts to stop the counting of illegal aliens in’ the upcoming census. In 1988, 42 Congressmen (led by Mr. Ridge), three state governments, and two nonprofit groups sued the Census Bureau in Federal Court to stop the counting of illegal immigrants in the upcoming census. This suit, like a similar one filed in 1980, was dismissed on technical grounds. Three bills filed during this Congress in the House of Representatives fared no better, having died in committee because the Democratic leadership had no intention of letting House members vote on the substance of this issue.

Advocates of the inclusion of illegal aliens in the census came forth with, some interesting rationales during the House debate on Mr. Ridge’s amendment: Congressman Pelosi of California said, “To deny these people [illegals] representation—people who often embody the most powerless elements of our society—is to deny them justice.” Lamar Smith of Texas, ranking Republican on the House immigration subcommittee, said the inclusion of illegals in the census reflects “the wisdom of the framers of the Constitution.” And Connie Morella of Maryland shuddered, “What a chilling effect to ask whether one is illegal or legal, what a chilling effect to have our numerators become INS [immigration] agents.”

A number of more serious arguments have also been made for counting illegals. The Fourteenth Amendment to the Constitution requires that seats in the House of Representatives be apportioned “counting the whole number of persons in each state.” The very people who see “emanations” and “penumbras” throughout the Constitution have, on this issue, become literalists. They maintain that the plain meaning of the words shows that it is unconstitutional to exclude anyone from the census count. Yet the Census Bureau counts only people whose “usual residence” is in the US, including illegal aliens, but excluding foreign visitors and some diplomats. These excluded people are obviously “in” the country, but are not counted, while servicemen who live abroad will be counted, and no one seems to mind.

The Census Bureau opposes the exclusion of illegals for more mundane reasons. It maintains there is no practical way to distinguish between legal and illegal residents, and that any attempt to do so would make its population figures less reliable. The Census Bureau also points out, with some justification, that it is a little late to change the rules for the 1990 census—170 million forms have already been printed’ up, to be mailed in March, and thousands of temporary workers have been trained as interviewers. Those in Congress who want illegals counted have used this time constraint to their advantage—they have refused to consider any move to exclude illegals until the year of the count, when they can claim it’s too late to change anything.

While it is virtually assured that illegal aliens will be counted in this year’s census, one thing is still uncertain. During the head count in 1980, Jimmy Carter’s Justice Department forbade immigration service raids against illegal aliens so as not to scare them away. According to the order sent by the Justice Department to immigration service offices in 1980, the ban on sweeps for illegal aliens was intended to foster “an atmosphere conducive to [obtaining] complete participation and disclosure of information” for the census.

Gene McNary, new commissioner of the Immigration and Naturalization Service, said during his Senate confirmation hearing in October that he would consider a similar moratorium on illegal alien searches in 1990, but that he would not stop enforcing the immigration laws. That will be some feat. When asked by this writer whether the attorney general would impose a ban on immigration law enforcement for the census, one of his spokesmen suggested asking the Immigration Service. A spokesman at the Immigration Service, in turn, said to call the attorney general’s office. Despite the evasiveness, however, the feeling in the administration and Congress seems to be that there will be no suspension of raids against illegal aliens for this census. We have to be thankful for small favors.