Hans von Spakovsky
The House of Representatives finally took action Wednesday to address an injustice that is being made worse by the rapidly growing number of illegal immigrants entering the United States: the distortion caused by including noncitizens in determining how many House members there are for each state.
House passed H.R. 7109, Equal Representation Actrequiring a citizenship question on the census form and including only the citizen population in the representation apportionment formula used after each census.
Article I, Section 2 The U.S. Constitution mandates an “actual enumeration” of the U.S. population every 10 years. This calculation is used to determine the number of House members each state is entitled to.
Because Congress confined the size of the House to 435 members in 1929 by passing a law Permanent Division Actthese 435 representatives are divided among the states.
Reapportionment after the 2020 census gave additional sites in 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.
However, this reapportionment was made based on the country’s total population, which includes foreigners who are here legally and illegally, even though they have no right or opportunity to participate in our democratic political process.
It’s critical to remember that vote reapportionment also affects the results of presidential races because that same reapportionment 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 sum of the votes of two U.S. senators and the number of its representatives in the House.
The Trump administration tried unsuccessfully to add a citizenship question back to the 2020 census form; this question first appeared in the 1820 census but was not included in later years.
As the U.S. Supreme Court noted in 2019 Department of Commerce v. New Yorksuch “demographic questions were asked in everyone census since 1790, and questions about citizenship in particular have been asked for almost as long.” In fact, as the Supreme Court noted, the Constitution “gives Congress virtually unlimited discretion to conduct” the census.
Although the Supreme Court has clearly stated that the Constitution’s enumeration clause “permits Congress and, by extension, the Secretary [of Commerce], to ask about citizenship on the census questionnaire,” this did not allow the Trump administration to add a citizenship question. (The U.S. Census Bureau, which conducts the census, is part of the Department of Commerce.)
Instead, the court found that the Commerce Secretary failed to provide a sufficient explanation for his actions under applicable administrative law. After this decision was made, there was not enough time for the Secretary to provide further explanations before the census form had to be printed and distributed, so the 2020 census did not include a citizenship question.
However, the Supreme Court’s decision makes clear that restoring citizenship to the census under H.R. 7109 is within the authority of Congress, as well as the Secretary of Commerce, under current law.
Article 2 of the 14th Amendment to the Constitution, ratified in 1868, states that representatives in the House “shall be apportioned among the States according to their respective numbers, reckoning the whole number of persons in each State, excluding Indians untaxed.”
Congress implemented this requirement into U.S. law (2 USC § 2a). H.R. 7109, a bill passed by the House, would amend Section 2a to exclude not only “Non-Taxable Indians” but also “Non-Citizens of the United States.”
How solemn is the distortion of representation in the House caused by the inclusion of foreigners, both legal and illegal, in the allocation? 2019 test The Center for Immigration Studies estimates that if aliens were removed from the apportionment population, each of these eight states would gain a seat in Congress: Ohio, Michigan, Missouri, Minnesota, Alabama, Idaho, West Virginia and Rhode Island. California alone would lose three seats because it has the largest illegal immigrant population in the country.
Similarly, 2015 report by the Congressional Research Service estimated that apportionment based on citizen population, excluding foreigners, would shift seven congressional seats. Winning the seat: Louisiana, Missouri, Montana, North Carolina, Ohio, Oklahoma and Virginia. California would lose four seats.
Taking into account unprecedented number of foreign nationals illegally admitted to the U.S. by the Biden administration since January 2021, representation distortions have undoubtedly worsened since the publication of these reports.
Opponents of this commonsense change may try to argue that the language in section 2 that the apportionment is based on “the number persons in each state” means that foreigners must be included in the distribution calculation.
However, the term “persons” has historically been interpreted in this context, as the Supreme Court clarified in 1992. Franklin v. Massachusettsmeaning a person who is not only physically present but has “some element of loyalty or lasting connection to a place.”
That’s why the Census Bureau, e.g. NO they include in the population count foreigners who visit the United States for vacation or business trips because they have no political or legal affiliation with any state or federal government and their only “enduring bond” is with their home or native country. However, the Census Bureau should not include this everyone foreigners in the population counted for division purposes.
But Democrats clearly don’t want to know how many foreigners are in the country. And they want the votes of US citizens diluted by aliens.
Wednesday’s vote in the House of Representatives on the Equal Representation Act was strictly along party lines, with 206 Republicans voting for it and 202 Democrats voting against it. The Senate version of the bill will be more tough in the Democrat-led upper house.
Including foreigners in the division dilutes votes and political representation of American citizens. It unfairly and intentionally gives political power to states like California block enforcing and implementing our immigration laws sanctuary policies designed to attract illegal aliens who threaten the security of society and cost taxpayers enormous amounts of money.
Also including foreigners in the breakdown cheats states and voters not only in the House of Representatives, but also by distorting the Electoral College system used to decide presidential elections.
It is high time to put an end to this fundamental injustice.
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Hans von Spakovsky is the Director of the Electoral Law Reform Initiative and a Senior Research Fellow at the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Photo “Pledge of Allegiance” by Gage Skidmore. CC BY-SA 2.0.
