All Americans who claim to care about voting rights should be cheering the Trump administration’s new policy on congressional apportionment, which would help restore representative government by transferring political power from illegal immigrants back into the hands of citizens.
That our political class granted power to those unlawfully in America ought to outrage anyone who cares about the sanctity of the ballot and the rule of law. Yet this fact has persisted for decades under administrations both Democratic and Republican. The Trump administration, on behalf of forgotten Americans, has been uniquely willing to challenge a convention that had long gone unquestioned.
Prior to the release of the president’s new “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” the federal government distributed congressional seats based on the total number of people residing in an area, including illegal aliens, rather than on the number of people legitimately represented, namely citizens.
Should the president’s memorandum hold, the United States will now exclude illegal immigrants from the population counts used to apportion House seats. This is right as a matter of law, fairness, and common sense.
Voting Rights Belong to Citizens
The president’s memorandum lays out the executive’s authority by statute and precedent to determine who constitutes the “whole number of persons in each state,” and to “settle[] the apportionment of representatives” among the states. More fundamentally, although neither the courts nor Congress has settled the issue, it is legally dubious that illegal aliens should be considered “persons” to be counted in the census, which is used for apportionment, pursuant to the relevant portions of the Constitution.
As constitutional scholar Dr. John Eastman notes, the Constitution begins, “We the people of the United States,” not “[We] the people of the world,” or “[We] any foreign nationals who happen to be in the United States when a census is taken.”
The 14th Amendment, which concerned not illegal aliens but primarily freed slaves, addressed, per Section 1, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Section 2, concerning apportionment, called for “counting the whole number of persons in each state, excluding Indians not taxed” — almost certainly referring to the primary subjects of the amendment, citizens, for whom the founders crafted the Constitution.
Including illegal immigrants in the figures used to distribute congressional seats also makes a mockery of the “one-person, one vote” principle. If one congressional district consists disproportionately of illegal immigrants, and another of voting-eligible citizens, the power of the voter in the former district is vastly greater than the power of the voter in the latter. Americans in areas of the country that are not sanctuaries for illegal aliens see their votes diluted and are effectively disenfranchised.
Noncitizens Significantly Affect Representation
At an even more basic level, as President Donald Trump says, “[W]e should not give political power to people who should not be here at all.”
To understand the cost of the status quo, consider the practical effect of counting illegal aliens for purposes of congressional apportionment in 2020. According to the White House, a single state includes 2.2 million illegal aliens, more than 6 percent of that state’s population. Counting this population would result in allocating two-to-three more congressional seats to the state than it would have otherwise received.
Similarly, a December 2019 Center for Immigration Studies analysis estimated that by counting illegal aliens in the 2020 census, the federal government would be redistributing three seats, one each from Ohio, Alabama, and Minnesota to California, New York, and Texas.
The effect is more pronounced as we broaden the population from illegal aliens to all noncitizens. Per the Center for Immigration Studies, if one counts illegal immigrants and their U.S.-born minor children — children who would not have been counted in the census had their parents not arrived or remained in the country illegally prior to having them — the federal government would redistribute five seats. Looking at all noncitizens and their U.S.-born minor children, the federal government would redistribute 10 seats.
In a country as closely divided as ours, illegal aliens and certainly all noncitizens have a material effect on representation. That the Trump administration is focused solely on the illegal population, rather than all noncitizens — when a case can be made that solely the voting-eligible population should be counted for purposes of apportionment — shows how relatively narrowly tailored the president’s policy is.
Trump Detractors Are Fighting the Policy
The reason I speak in hypotheticals and note the policy’s modest focus is that the Resistance has announced its intention to fight this policy in the courts.
This is another round in a battle that started with the Trump administration’s effort to reinstate a citizenship question on the census, reading, “Is this person a citizen of the United States?” At the time, I surmised that one reason the administration’s opponents fought against including this question was that if Americans learned of the size of the noncitizen population and its effect on both representation and the allocation of hundreds of billions of federal dollars per year, they would be livid.
The left ultimately prevailed in the Supreme Court not because the question was illegal but on a technicality, ostensibly because the court disapproved of the process by which the administration went about adding the question. It appeared once again that the court was making our government one of men rather than laws, judging on the basis of politics rather than on the merits because of the majority’s antipathy to Trump.
The Trump administration’s reasoning behind putting this policy into practice is both reasonable and prudent. As the president states:
Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives. …
I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base.
If our courts cannot see the merit to this argument, American citizens will be rendered defenseless once again on a fundamental matter. Striking down this policy would demonstrate yet again that it is only Trump, and a tiny cadre of like-minded officials in the executive and legislative branches, standing up for justice for Americans against a political class that opposes us.
