Speech #1010080435

James Madison said that apportionment was to be "founded on the aggregate number of inhabitants." Inhabitantsnot citizensthe intention to include everyone in the apportionment base could not be clearer. The framers intentions are also clear from the consistent practice of the Census Bureau for 190 yearssince the Ratification of the Constitution. To quote the Congressional Research Service: The fact that every census since 1790 has included legal as well as illegal aliens in its count would seem to be Indicative of the fact that the original intent of the Framers was to include such aliens. I would like to hear from those who propose this particular amendment if they have been able to find anyone who was there at the time of the Constitutional Convention who challenged that particular understanding. It is difficult for me to believe that if the Census Bureau were running contrary to what the framers wanted at that time that it would have gone unnoticed. Of course it would not have. The same conclusion has been reached by the Federal courts. In 1980. in FAIR versus Klutznick. a threeJudge Federal court stated that the Constitution: � $ � -7ERequires the counting of the "whole number of persons" for apportionment purposes. and while illegal aliens were not a component of the population at the time the Constitution was adopted. they are clearly "persons." In other contexts. the Supreme Court has consistently held that the 14th amendment consistently held that the word "persons" in the 14th amendment includes Illegal aliens. For example. in 1982 in Plyler versus Doe. the court held that the equal protection clause bars states from completely excluding illegal aliens from its schools. In so doing. the Court stated: Aliens. even aliens whose presence in this country is unlawful. have long been recognized as "persons guaranteed due process of law by the 5th and 14th amendments. The Congressional Research Service. after a thorough analysis. concluded that the Constitution requires that all persons. including illegal aliens. be counted in. the apportionment base. The CRS study concluded that: A statutory exclusion of aliens from [the apportionment] base would seem to violate the "whole number of persons" requirement and thus be unconstitutional. The Justice Department. under both Presidents Carter and Reagan. also recognized that the Constitution bars excluding illegal aliens from the census. And the Justice Department under the current administration has recently reiterated its view that proposed legislation like the pending amendment is unconstitutional. The Shelby amendment is unworkable because it would require the Census Bureau to exclude illegal aliens from the apportionment counts. In 1988. the Director of the Census Bureau testified before a Hou e subcommittee that the Census Bureau: has not found an acceptable method to exclude undocumented immigrants from the apportionment counts. The reason is obvious. If census takers are required to ask people whether they are Illegal aliens. thats going to provoke widespread fear and suspicion and noncooperation with the census. The Census Bureau found that: A census of only legal residents cannot be done as accurately as a census of all resi. dents. People who are undocumented immi. grants may either avoid the census altogeth. er or deliberately misreport themselves as legal residents in the census.*** Legal residents may be confused about why the government is asking whether a person Is here illegally. Legal residents. therefore. may misunderstand or mistrust the census and fail or refuse to respond. And the Census Bureau is clearly not the proper agency to decide whether an alien is "in the United States in violation of the immigration laws." Census takers are not experts on our immigration laws. Do we want parttime. onetime government employees to be deciding immigration status? Thats what the Shelby amendment would require. Finally. the Shelby amendment is entirely inappropriate to add to this important appropriations bill.