The House of Representatives finally acted Wednesday to remedy an injustice that has been getting worse as the number of illegal aliens coming into the United States has skyrocketed: the distortion caused by including noncitizens when determining how many House members each state gets.
The House passed HR 7109, the Equal Representation Act, to mandate a citizenship question on the census form and use of only the citizen population in the apportionment formula for representation applied after every census.
Article I, Section 2 of the U.S. Constitution mandates an “actual Enumeration” of the U.S. population every 10 years. That enumeration is used to determine the number of members in the House to which each state is entitled.
Because Congress limited the size of the House to 435 members in 1929 by passing the Permanent Apportionment Act, those 435 representatives are divided among the states.
Reapportionment after the 2020 census gave additional seats to six states: Colorado, Florida, Montana, North Carolina, Oregon, and Texas. It also reduced the number of seats held by seven states: California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia.
But that reapportionment was based on the country’s total population, which includes aliens who are here both legally and illegally even though they have no right or ability to participate in our democratic political process.
Keep in mind that reapportionment also affects the outcome of presidential races, since this same apportionment determines how many votes a state has in the Electoral College. Under Section 1 of Article II, the number of Electoral College votes for each state is the total of its two U.S. senators and the number of its representatives in the House.
The Trump administration unsuccessfully tried to add a citizenship question back to the 2020 census form; the question first appeared in the 1820 census but wasn’t included in more recent years.
As the U.S. Supreme Court noted in 2019 in Department of Commerce v. New York, such “demographic questions have been asked in every census since 1790, and questions about citizenship in particular have been asked for nearly as long.” In fact, the high court noted, the Constitution “vests Congress with virtually unlimited discretion in conducting” the census.
Although the Supreme Court specifically held that the Constitution’s enumeration clause “permits Congress, and by extension the Secretary [of Commerce], to inquire about citizenship on the census questionnaire,” it didn’t allow the Trump administration to go forward with adding a citizenship question. (The U.S. Census Bureau, which conducts the census, is part of the Commerce Department.)
Instead, the court held that the commerce secretary had not provided a sufficient explanation for his actions under applicable administrative law. There was not enough time after this decision for a more extensive explanation to be provided by the secretary before the census form needed to be printed and distributed, so the 2020 census didn’t include a citizenship question.
But the Supreme Court’s decision makes it clear that HR 7109’s restoration of a citizenship question to the census is well within the authority of Congress, as well as the commerce secretary, under existing law.
Section 2 of the 14th Amendment to the Constitution, ratified in 1868, provides that representatives in the House “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
Congress implemented this requirement in U.S. law (2 U.S.C. § 2a). HR 7109, the bill passed by the House, would amend Section 2a to exclude not only “Indians not taxed,” but also “individuals who are not citizens of the United States.”
How bad is the distortion in representation in the House caused by including aliens, both legal and illegal, in apportionment? A 2019 study by the Center for Immigration Studies estimates that if aliens were removed from the apportionment population, these eight states would each gain a congressional seat: Ohio, Michigan, Missouri, Minnesota, Alabama, Idaho, West Virginia, and Rhode Island. California alone would lose three seats, since it has the largest population of illegal aliens in the country.
Similarly, a 2015 report by the Congressional Research Service estimated that apportionment based on citizen population, excluding aliens, would shift seven congressional seats. Gaining a seat: Louisiana, Missouri, Montana, North Carolina, Ohio, Oklahoma, and Virginia. California would lose four seats.
Given the unprecedented number of aliens allowed into the U.S. illegally by the Biden administration since January 2021, the distortion in representation no doubt grew even worse since these reports were issued.
Opponents of this commonsense change may try to argue that the language in Section 2, that apportionment is based on the “number of persons in each State,” means that aliens must be included in the apportionment calculation.
However, the term “persons” historically has been interpreted in this context, as the Supreme Court explained in 1992 in Franklin v. Massachusetts, to mean an individual who not only has a physical presence but “some element of allegiance or enduring tie to a place.”
That is why the Census Bureau, for example, doesn’t include aliens who visit the U.S. for a vacation or a business trip in the population count, since they have no political or legal allegiance to any state or the federal government, and their only “enduring tie” is to their native or home countries. However, the Census Bureau shouldn’t include any aliens in the population count for apportionment purposes.
