Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.
The House of Representatives, otherwise known as the “People’s House,” was designed by the Framers to be the body of the federal government most sensitive and receptive to voter opinion. That’s why almost all members represent fewer voters than senators do, and it’s why each member represents as equal a number of constituents as is possible and practical.
It’s also why it’s wrong for the government to count illegal immigrants in the apportionment process, which directly determines how many congressional seats each state is assigned.
The Constitution does not grant illegal immigrants the right to vote. In the spirit of the constitutional principle of “one person/one vote,” and Congress’ obligation to represent voters, it seems obvious that illegal immigrants should not be counted alongside American citizens in determining how congressional seats are distributed. Yet this is not the case.
The relevant part of the Constitution is Article I, Section 2, Clause 3, which reads: “Representatives … shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed.”
The Framers envisioned an issue like our current immigration situation when they added “excluding Indians not taxed” as people whom the United States did not have control over, either by treaty or by dint of being on the frontier. As such, they were not to be included in the apportionment process. If the Framers understood this, then why can’t our present-day government understand it?
At the heart of the matter is the sovereignty of individual American citizens. The inclusion of illegal immigrants in this very important process creates an inequality of voting power between citizens in congressional districts with many illegal immigrants and citizens who live in districts with few.
Consider the following example. Congressional District A and Congressional District B each comprise 10,000 people. District A has 8,000 voting citizens and 2,000 illegal immigrants, while District B has 10,000 voting citizens and zero illegal immigrants. Under the current system in which illegal immigrants are included in the apportionment process, the vote of a citizen in District A is worth more than that of a citizen in District B. What’s more important, citizens in District A have a greater proportional representation in Congress than citizens in District B, even though District A has fewer citizens than does District B.
The consequences aren’t just hypothetical.
After the 2010 census, several states with the highest populations of illegal immigrants gained House seats. South Carolina, Georgia, Washington state, Arizona, Nevada, Florida and Texas — nearly all of which are among states with the highest numbers of illegal immigrants — gained at least one seat, while Ohio, among the states with the fewest illegal immigrants, lost two House seats.
The practice of counting illegal immigrants in the decennial census leads directly to a shift in the balance of power from states with fewer illegal immigrants to states with more. This creates a perverse incentive for state and local governments to attract and accommodate more illegal aliens so those places can continue to have more representatives, and therefore more power, in Washington.
How did we get here?
It began years ago, with bureaucrats in Washington setting bad precedent. Before 1980, illegal immigration to the United States was relatively minimal and the Census Bureau did not seek to count them. But the number of illegal immigrants began to grow, and during the 1980 census they were encouraged by the Census Bureau to come forward and “be counted.” It’s estimated that the Census Bureau counted just over 2 million illegal immigrants in 1980.
The practice of counting illegal immigrants in the reapportionment base has remained unchanged in the 40 years since, even as their numbers have exploded.
The Trump administration tried to change this pathology by moving to exclude illegal immigrants from the population count for the 2020 census. Unable to get legal traction, this effort was never successfully implemented.
Now the Biden administration, which has already taken steps to end travel bans, halt border wall construction and water down immigration enforcement, also has plans to grant tens of millions of illegal immigrants a pathway to citizenship. These actions will only encourage more illegal immigration to the United States and further exacerbate the problem.
With a president intent on making the problem worse, now is the time for congressional leaders to take a stand and affirm their duty to uphold constitutional principles that include fair representation for the American people. If they don’t, the problem will only worsen and the sovereignty of American citizens will diminish.
• Rep. Jim Banks, Indiana Republican, is the chairman of the House Republican Study Committee.
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