Mr. SAWYER. We are going to try to keep to a 5-minute rule on both questions and statements. But certainly I appreciate your flexibility on that and whatever latitude you can have.

Mr. Petri?

STATEMENT OF HON. THOMAS E. PETRI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN

Mr. PETRI. Thank you, Mr. Chairman. I would like to thank you very much for the opportunity to testify here today.

As you know, for the past three Congresses I have coauthored legislation with Mr. Goodling directing the Census Bureau to exclude illegal aliens from the census figures for apportionment purposes. This legislation would provide fair and equal representation for the legal residents of this country. Now that the other body has passed similar legislation, it is high time for the House to consider this issue.

As Mr. Goodling has said, in the 1980 census an estimated 2.06 million illegal aliens were counted. The House is limited to 435 seats. In 1980, the counting of illegals caused California to gain one seat and New York to keep one seat that it would otherwise have lost. The Congressional Research Service has estimated the growth of the illegal alien population in the United States since 1980 and has concluded that the 1990 census and reapportionment will once again cause shifting of districts. As a result, some States will gain at the expense of others. I believe that the basic right of equal representation is violated when voters in States with large numbers of illegal aliens have a greater voice than voters in other States in choosing representatives in Congress.

It seems to me that the main question about our bill concerns its constitutionality. It has been argued that the Constitution, as amended by the 14th amendment, requires all persons to be counted in the Census and that excluding illegal aliens is therefore unconstitutional. But the fact is that when the Founding Fathers drafted the apportionment requirements there was no such thing as an illegal alien. And moreover, all persons have not always been counted or counted equally. For example, we have excluded foreign diplomats, though they are clearly persons. We have also excluded invading armies and Indians untaxed. In fact, this issue has been argued both ways.

I don't pretend to be a scholar in this area, but I do cite in my statement a statement by Professor John T. Noonan of the University of California, in Berkeley, who concludes that in fact the compelling constitutional argument is that equal representation is paramount over counting all persons and that our statute in fact would be more in line with the Constitution than the current practice. So it seems to me that in the face of the constitutional arguments both ways we in the Congress ought to do what we think is right and then let the Supreme Court rule on it. Let's do our job, and let the Supreme Court do its job.

By the way, this issue is independent of the Supreme Court decision that undocumented aliens are entitled to certain rights and benefits in this country. I am not arguing that the allocation of Federal funds should be changed. I am calling for a change in the

way the census counts only for apportionment purposes, and I believe the laws governing the funding for programs can be specified as the Congress wishes. Clearly the funding of Federal programs is not the issue here.

Various methods have been suggested to successfully keep illegal aliens from the census count for reapportionment. Our bill leaves it to the Secretary of Commerce to determine the most appropriate method. I don't think we should get into that level of detail in legislation. But it is hard to believe that the Secretary will be unable to come up with any methods at all.

So it seems to me that in conclusion I would just like to say that whether we address this issue in this Congress for this census or not, times are changing and the census procedures are very much out-of-date in a world with modern transportation and communications. We currently don't count American exchange students, for example, overseas. We do count the hundreds of thousands of foreign students who are here. God knows how they count tourists on their transit night. And we have millions and millions of people moving back and forth across political boundaries. That number will only increase further and it is going to distort the equal representation that we are entitled to as Americans unless we address it at some point. Why not do it now?

[The statement of Mr. Petri follows:]

Testimony of Rep. Tom Petri

Before The House

Subcommittee on Census and Population

August 1, 1989

Mr. Chairman, I want to thank you very much for giving me the opportunity to testify here today. I appeared before this same subcommittee on the same subject last year, and what I have to say today won't be very much different from what I said then. However, since it's a new Congress and the membership of the subcommittee has changed, I'm happy to come again.

As you know, for the past three Congresses, I have coauthored legislation with Mr. Goodling directing the Census Bureau to exclude illegal aliens from the census figures used for apportionment

purposes. This legislation would provide fair and equal

representation for the legal residents of this country. Now that the other body has passed similar legislation, it is high time for the House to consider this issue.

In the 1980 census, the Census Bureau counted an estimated 2.06 million illegal aliens. As you all know, the House is limited to 435 seats. In 1980, the counting of illegals caused California to gain one seat and New York to keep one seat that it would otherwise have lost. The Congressional Research Service has estimated the growth of the illegal alien population in the united States since 1980 and concluded that the 1990 census and reapportionment will once again cause shifting of districts. As a result, some states will gain at the expense of others. I believe that the basic right

of equal representation is violated when voters in states with large numbers of illegal aliens have a greater voice than voters in other states in choosing representatives in Congress.

It seems to me that the main question about our bill concerns its constitutionality. It has been argued that the Constitution, as amended by the 14th amendment, requires all persons to be counted in the Census and that excluding illegal aliens is therefore unconstitutional. However, when the Founding Fathers drafted the apportionment requirements, there was no such thing as an illegal alien here. Moreover, all "persons" have not always been counted or counted equally. For example, we have excluded foreign diplomats, invading armies, and "Indians untaxed." In fact, this issue has been argued both ways.

I do not pretend to be a scholar in this area. But let me refer you to the September 18, 1985, Senate testimony of Professor John T. Noonan of the University of California, Berkeley law school. His conclusion states: "The argument that the Constitution textually requires the enumeration of every person is superficially appealing, but unpersuasive on examination of the ambiguity of 'Persons.' The statements of the Supreme Court on the rights of aliens under the Fourteenth Amendment relate to section 1 rights and do not govern section 2. The Supreme Court itself has recognized the right of Congress to discriminate between types of aliens. No case has denied Congress the right of exercising its multiple powers under the Constitution to direct that aliens unlawfully within the country not be numbered in 'the actual enumeration.' On the contrary, the principles laid down by the Supreme Court in REYNOLDS

v. SIMS and WESBERRY v. SANDERS require that such aliens, when they
exist in large numbers, not be counted in determining congressional
districts. The claim that representation should reflect population
needs is appealing but overriden by the Constitution's direction
that the participants in the political process the citizens of
the country be equal in their votes. At the very least, Congress
has power under both Article I and the Fourteenth Amendment to

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direct that such aliens not be counted."

I believe that legislation excluding illegals from the Census for apportionment purposes could be found constitutional. It could also be found that including them is unconstitutional, which is a stronger position. We have tried to test that proposition in the courts, but both the most recent case and a similar one a decade ago were thrown out on grounds that the plaintiffs lacked standing. So that issue has not been decided on the merits.

It seems to me that in the face of the constitutional arguments both ways, we in the Congress ought to do what we think is right and then let the Supreme Court rule on it. Let's do our job and let the Court do its job.

By the way, this issue is independent of the Supreme Court decision that undocumented aliens are entitled to certain rights and benefits in this country. I am not arguing that the allocation of federal funds should be changed. I am calling for a change in the way the Census counts only for apportionment purposes. I believe the laws governing the funding for programs can be specified as the Congress wishes. Clearly, the funding of federal programs is not the issue here.