THE CENSUS EQUITY ACT

TUESDAY, AUGUST 1, 1989

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CENSUS AND POPULATION,

COMMITTEE ON POST OFFICE AND CIVIL SERVICE,

Washington, DC. The subcommittee met, pursuant to call, at 9:40 a.m., in room 311, Cannon House Office Building, Hon. Thomas C. Sawyer (chairman of the subcommittee) presiding.

Mr. SAWYER. My understanding is that Congressman Ridge is on his way, but we will begin and hear from other Members as they join us.

Good morning. Today, the subcommittee will hear testimony on H.R. 2661, the Census Equity Act, sponsored by our ranking minority member, Congressman Tom Ridge of Pennsylvania, and several related bills.

The various pieces of legislation that we are considering raise two distinct issues. The first is whether undocumented residents should be excluded from the State population totals used for the purposes of apportionment of the House of Representatives, and the second issue is whether members of the armed forces, civilian Federal employees, and other U.S. citizens who are overseas during the census, such as students, should be included in the same apportionment counts.

The subcommittee and Congress as a whole have visited both of these issues in the past. During the 100th Congress, under the chairmanship of Congressman Dymally, this subcommittee held separate hearings to review legislation similar to the bills that we are considering at this morning's hearing.

Quite clearly and understandably, Congress has a significant interest in the issues that we confront today. With the 1990 census only eight months away, attention is focused on the need for an accurate census count and the many political and policy determinations, including reapportionment, that hinge on the census.

Now I don't doubt for a moment the sincere beliefs that have prompted our colleagues to sponsor the legislation that we are reviewing. Their persistence in raising these issues before the committee, the Congress, and the courts demonstrates the very high priority which the Members of Congress have placed on resolving the intent of the Constitution with regard to the basis for apportionment of the House of Representatives.

However, with all due respect to my distinguished colleague on the subcommittee, Congressman Ridge, I have to say that I am deeply troubled by the portion of his and these other legislative

proposals that seek to exclude undocumented residents from the census counts used for apportionment.

Since the beginning of my service as chairman of this subcommittee, I have studied the history of the development of the apportionment clause, and I am convinced that the Constitution requires the inclusion in the apportionment clause and apportionment base of all persons residing in the United States, regardless of their legal status in this country.

The abiding precision and sagacity of the framers which continues to impress us even today can be seen in their most careful drafting of each clause of the Constitution. The apportionment clause, which is contained in Article I, section 2, is quite specific with respect to those persons whom the drafters intended to exclude from the apportionment base—namely, Indians not taxed and two-fifths of the slaves at the tin.c.

I have no reason to believe that in drafting the 14th amendment, the 39th Congress was not equally careful in its determination of the apportionment base, choosing as it did to apportion Congress according to the whole number of persons in each State and excluding once again Indians not taxed. The language used in both Article I and the 14th amendment simply is not ambiguous.

My colleagues have argued in court that the meaning of the word "persons" in the apportionment clause of the 14th amendment is subject to interpretation. I don't agree. The Supreme Court, in rejecting the argument that aliens were not persons within the meaning of the due process clause of the 14th amendment, has stated that, "Whatever his status under the immigration laws, an alien is surely a person in any ordinary sense of that term." This interpretation of the Constitution is bolstered by 200 years of census taking, a fact we shouldn't overlook in our debate over apportionment for the 1990 census. The accurate enumeration of the population in 106 million households nationwide and the collection of data about each person and housing unit presents a challenge of surpassing magnitude for the Census Bureau.

This subcommittee has reviewed in hearing after hearing the great number of obstacles the Bureau must overcome in its effort just to promote participation in the census. In my judgment, the introduction of a new factor, that of a respondent's legal status in this country, into the census taking process will, as a practical matter, seriously damage and perhaps even destroy the Census Bureau's ability to enumerate the population in an accurate, efficient, and timely manner. It may, in fact, provoke, unintentionally but with utter certainty, a greater measure of inaccuracy than that which it presumes to cure.

For the reasons I've outlined, I believe that the portion of H.R. 2661 and related bills which seek to exclude undocumented residents from the apportionment base is both unconstitutional and, in any case, unworkable in a practical sense.

On the other hand, I have to tell you that I don't find the same constitutional infirmity with the portion of the legislation that requires the inclusion of members of the armed forces and civilian employees of the Defense Department in the apportionment counts because their usual place of residence clearly is in the United States. That these individuals are located outside the United States

on Census Day as a result of their service to our Government is not a factor directly of their own choosing. Further, it is my understanding that DOD and the Bureau have reached an agreement on the administration of an overseas enumeration project to standards consistent with the technical requirements of a full and accurate census for apportionment purposes.

I am pleased to hold this hearing today because I really have the utmost respect for the opinions and beliefs of my friend and colleague, Congressman Ridge, with whom I have worked very closely during this Congress to promote full participation in the census. At the same time, I must express my fear that if Congress were to adopt the proposals that we consider today, in any form, we will be violating the Constitution and jeopardizing both the quality and perhaps the capacity to execute to any standard of accuracy one of the most critical national endeavors, the census.

I fully understand that as we approach Census Day the prospect of a loss of congressional seats for any State is a frightening one for Members of Congress. However, it is clearly important that we not let this fear cloud our judgment or interfere with our duty to uphold the Constitution.

With that, Congressman Dymally, do you have any comments you would like to add at this point?

Mr. DYMALLY. Not really, Mr. Chairman. I simply want to thank my delegation chairman, Mr. Edwards of California, chairman of the Subcommittee on Constitutional Rights of the Judiciary Committee, for coming to testify today to bring to the attention of Members of the committee and the Congress as a whole the whole constitutional problems involved in Mr. Ridge's bill, and I am very pleased that he will testify.

Thank you, Mr. Chairman.

Mr. SAWYER. Before we begin with our first witness, I would like to announce that the Under Secretary of Commerce for Economic Affairs, Michael Darby, has submitted a statement for the hearing record which reiterates the Department of Commerce's long-standing and strong opposition to the provisions of H.R. 2661 which require the exclusion of undocumented residents from the apportionment base.

I clearly appreciate Under Secretary Darby's effort to ensure that requirements are not imposed on the Census Bureau that would severely hamper the Bureau's ability to conduct an accurate and efficient census.

So, without objection, I would like to submit the Under Secretary's statement into the record immediately following the statement of the Census Bureau.

Our first panel this morning is made up of Congressman Don Edwards, who is the chairman of the Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, and, in addition, we have with us Congressman Tim Valentine of the Second Congressional District of North Carolina, whose schedule we would be pleased to accommodate this morning, and we would ask you to join us on the panel, Congressman.

The other planned member of the first panel, Congressman Bustamante, has not arrived yet.

With that, Congressman Edwards.

STATEMENT OF HON. DON EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. EDWARDS. Thank you very much, Mr. Chairman. I appreciate being invited here to testify on this important matter.

Mr. Chairman, I ask that my full statement be made a part of the record because your opening statement, Mr. Chairman, just seemed to me to cover so much of what I was going to cover-I am going to cover-in a very sound, constitutionally sound, way. I want to compliment you on that statement, Mr. Chairman. It really was excellent.

Mr. Chairman, the intent of the framers of our Constitution could not be clearer in writing the Constitution; when the framers meant citizens, they said so. In this regard, I refer you to Article I, section 2, clause 2; Article I, section 3, clause 3; and Article II, section 1, clause 5. When the framers meant persons, they said "persons." They clearly understood the difference between using the word "persons" and the word "citizens."

As the records of the Constitutional Convention of 1787 indicate, it was never the intent of the framers to include only citizens for reapportionment purposes. This principle is reflected in the language chosen by the 39th Congress, as you mentioned in your statement, Mr. Chairman, in drafting section 2 of the 14th amendment. That Congress specifically rejected the words "voters" and "citizens" with regard to reapportionment. Instead, they specifically selected the word "persons.'

Further, the history of our country is absolutely clear with regard to the counting of residents, both legal and illegal, for reapportionment purposes. Every census since the Constitution was adopted has counted all residents of the State, including not only citizens but both documented and undocumented residents. The framers were there during the 1790 census. If the count was not done according to their intent, surely they would have made this known and done something about it.

The language of the Constitution has been construed both by Congress and by the courts for 200 years to include all residents of the States, illegal and legal, citizens and noncitizens, as a matter of constitutional law.

Mr. Chairman, this is not a new issue. The House Committee on the Judiciary studied this issue in depth in 1940 and rejected a bill that would have excluded undocumented residents from the population base for reapportionment purposes. As the late Emmanuel Celler-for many years the chairman of the Judiciary Committeestated at the time, "The only way we can exclude them would be to pass a constitutional amendment." And, the United States Supreme Court in refusing to hear a case brought in 1980 which sought to exclude documented residents from the census noted that, "The defendant's interpretation of the constitutional language is bolstered by two centuries of consistent interpretation."

Mr. Chairman, the Constitution is not ambiguous on this point. In case after case, the Supreme Court has emphasized that the standard for reapportionment is the actual number of people inhabiting the States.