A Bill to Ensure Fair Representation for American Citizens
Hans von Spakovsky / @HvonSpakovsky / May 09, 2024
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.
I am so happy to report that all the TN Republican representatives voted for this important legislation.
HAGERTY APPLAUDS HOUSE PASSAGE OF HIS BILL TO END COUNTING OF ILLEGAL ALIENS IN ALLOCATING ELECTORAL COLLEGE VOTES AND CONGRESSIONAL SEATS, URGES SWIFT SENATE PASSAGE
House companion legislation to the Hagerty-authored bill was introduced by Rep. Chuck Edwards
(R-NC-11)
WASHINGTON—United States Senator Bill Hagerty (R-TN), a member of the Senate Rules Committee, today applauded passage of the House version of the Hagerty-authored Equal Representation Act in the House of Representatives, legislation to ensure that only legal citizens are factored into the count for allotting congressional districts and the Electoral College votes that determine presidential elections. The current method of counting illegal aliens for purposes of representation dilutes the votes of Americans in areas with relatively few illegal aliens and serves as a perverse incentive for open borders and sanctuary cities to boost the relative political power of the states and voters that embrace these policies.
Earlier this year, video emerged of a Democrat House member from New York calling for more illegal immigration to her district for “redistricting purposes”, meaning that, because of population loss, she sought to fill her district with illegal aliens to keep from losing her seat.
“The House of Representatives rightly voted today to protect the power of Americans’ votes in our elections,” said Senator Hagerty. “It is unconscionable that illegal aliens and non-citizens are counted toward congressional district apportionment and our electoral map, which encourages illegal immigration and destroys equal representation by making some citizens’ votes more powerful than others, particularly in Democrat-run sanctuary cities. By voting unanimously to block this bill in the Senate earlier this year, Senate Democrats made chillingly clear that they will vote for anything that preserves their own power—even using illegal immigration to compromise Americans’ voting rights. We don’t count people here in the U.S. on temporary assignment or on vacation to allocate voting power—why would Democrats argue to count illegal aliens to allocate our congressional districts and the electoral vote? I thank Representative Edwards for his leadership in the House to get this important legislation across the finish line. The Senate must quickly follow suit and send this legislation to the President’s desk.”
Background:
- In January 2024, Hagerty led 20 of his Senate Republican colleagues in introducing the Equal Representation Act.
- In March 2024, every single Senate Democrat voted against Hagerty’s legislation as an amendment to appropriations bills, which put them on the record siding with illegal aliens over American citizens.
- The Equal Representation Act:
- Requires that the Census Bureau include a citizenship question on any future census to provide a greater understanding of the U.S. population and delineate between citizens and non-citizens for apportionment purposes;
- Prohibits non-citizens from being counted for purposes of congressional district and Electoral College apportionment; and
- Requires that the Census Bureau publicly report on certain demographic data.
###
INTRODUCTION of Senate Bill:
HAGERTY, COLLEAGUES INTRODUCE LEGISLATION TO END COUNTING OF ILLEGAL IMMIGRANTS IN DETERMINING ELECTORAL COLLEGE VOTES AND CONGRESSIONAL DISTRICT APPORTIONMENT
Counting illegal immigrants' voting power encourages illegal immigration and destroys equal representation by making some citizens’ votes more powerful than others.
Co-sponsors of the bill include Senators Marsha Blackburn (R-TN), Mike Braun (R-IN), Katie Britt (R-AL), Ted Budd (R-NC), Bill Cassidy (R-LA), Kevin Cramer (R-ND), Mike Crapo (R-ID), Steve Daines (R-MT), Cindy Hyde-Smith (R-MS), James Lankford (R-OK), Mike Lee (R-UT), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds (R-SD), Eric Schmitt (R-MO), John Thune (R-SD), Tommy Tuberville (R-AL), and J.D. Vance (R-OH).
Foreign-Born Population Grew by 5.1 Million in the Last Two Years
The largest two-year increase ever recorded
By Steven A. Camarota and Karen Zeigler on May 13, 2024
The foreign-born or immigrant population (legal and illegal) hit new record highs in March 2024 of 51.6 million and 15.6 percent of the total U.S. population. Since March 2022 the foreign-born population has increased 5.1 million, the largest two-year increase in American history. The foreign-born population has never grown this much this fast. Although many think of immigrants only as workers, less than half of those who arrived since 2022 are employed. This analysis is based on the government’s monthly Current Population Survey (CPS), which like any survey has a margin of error, so there are fluctuations in the data. But the increase in the last two years is unlike anything seen before and is statistically significant.
Among the findings:
In March 2024 the foreign-born population reached 51.6 million, 5.1 million more than in March 2022 — the largest two-year increase ever recorded in American History.
The 51.6 million foreign-born residents in March of this year were 15.6 percent of the total U.S. population, also record highs in American history.
Since President Biden took office in January 2021 the foreign-born population has increased by 6.6 million in just 39 months.
We have previously estimated that nearly 58 percent of the increase under President Biden is due to illegal immigration.
If present trends continue, the foreign-born population will reach 62.5 million in 2030 and 82.2 million by 2040 — larger than the current combined populations of 30 states plus the District of Columbia.
Many observers think of immigrants solely as workers, but only 46 percent of the foreign-born who arrived in 2022 or later were employed in the first part of 2024 — similar to the share of new arrivals employed during previous economic expansions.
As in any human population, many newly arrived immigrants are children, elderly, disabled, caregivers, or others with no ability to work or interest in doing so.
Only about 8 percent of the 2.5 million new arrivals who are not working say they are actively looking for work.
The dramatic recent increases in the size of the foreign-born population represent net growth. The number of new arrivals was much higher but was offset by outmigration and natural mortality among the foreign-born already here.
There also is some undercount in this data, so the actual number of foreign residents in the United States is larger.
Introduction
This report is part of a series of recent reports from the Center looking at the size and growth of the foreign-born population in the monthly Current Population Survey (CPS), sometimes referred to as the “household survey”. The CPS is collected each month by the Census Bureau for the Bureau of Labor Statistics (BLS).1 While the larger American Community Survey (ACS) is often used to study the foreign-born, the most recent version of the ACS reflects only the population through July 2022 and is now 20 months out of date. It does not fully reflect the ongoing border crisis and resulting surge in immigration. The monthly CPS allows for a much more up-to-date picture of what is happening. In the Appendix of a prior analysis we discuss the ACS compared to the CPS.
