Excluding Illegal Aliens from Congressional Reapportionment Is Common Sense

On July 21, President Trump issued a memorandum to the Secretary of Commerce to exclude illegal aliens from the congressional reapportionment base following the 2020 national census. Not surprisingly, various left-wing “immigrant rights” advocacy groups immediately threatened to sue.

The American Civil Liberties Union (ACLU), for instance, claimed the action was “patently unconstitutional” and an “attack on immigrant communities.” Gavin Newsom, the Democratic governor of California – a state with the largest illegal alien population (3 million out of 14.3 million in the entire U.S.), and therefore the most to lose – also reacted predictably to the memo. Claiming it was “rooted in racism and xenophobia,” Newsom said in a statement that it “a blatant attack on our institutions and our neighbors.” The reality, however, is that the principle at the heart of the presidential memo is common sense.

Every 10 years – as mandated in Article I, Section 2 of the U.S. Constitution – the Department of Commerce conducts a nationwide count of every person living in the United States. The decennial census determines the size of each state’s congressional House delegation, as well as the votes each state can cast in the Electoral College. It also determines the distribution of federal funding for various programs to the states, including Highway Planning and Construction, Medicaid, SNAP (“food stamps”), the Section 8 Housing Choice Voucher program, and Head Start.

Therefore, states with larger populations, such as California and New York, have more elected federal representatives, more presidential electors, and also receive more in federal funding. They also happen to have larger populations of foreign nationals and illegal alien residents.

The fact such states are essentially rewarded with more power and money clearly encourages them to pursue policies that benefit, shield, and attract people who violated our laws and borders to get here.

One of the most notoriously perverse incentives in this context are sanctuary policies, These jurisdictions flout federal immigration laws and, all too often, seem to prefer to release dangerous illegal alien criminals to prey on the public (including frequently other illegal aliens) rather than cooperate with U.S. Immigration and Customs Enforcement (ICE). After all, it is usually ordinary people – not the pro-sanctuary politicians – that suffer from the negative aspects of these irresponsible and reckless policies.

By contrast, states that respect federal immigration laws and have smaller illegal alien populations are effectively penalized when illegal aliens count towards congressional reapportionment. Since there is a fixed number of seats in Congress and of presidential electors, they may lose both representation and funding to pro-illegal-alien states. Thus, even though unauthorized foreign nationals may not legally vote, their mere presence – especially in significant numbers – still indirectly dilutes the vote of the average American citizen in many states and thereby distorts the electoral process.

The opponents of President Trump’s common-sense proclamation claim that it is unconstitutional. For example, Gov. Newsom asserted in his statement that “counting every person in our country through the Census is a principle so foundational that it is written into our Constitution.” Of course, “counting every person in our country” is one thing; counting them toward the congressional reapportionment base is quite another.

The founding document is itself rather vague on this issue, mentioning only the “whole number of persons in each state, excluding Indians not taxed.” However, as the presidential proclamation makes clear, “the President, by law, makes the final determination regarding the ‘whole number of persons in each State,’ which determines the number of Representatives to be apportioned to each State.”

The executive memo also emphasizes that “determining which persons should be considered ‘inhabitants’ for the purpose of apportionment requires the exercise of judgment.” Thus, “aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are ‘persons’ who have been excluded from the apportionment base in past censuses.”

In other words, there is a long and rational practice of not counting every single person who happens to find themselves on U.S. territory, and within a certain state at the time of the census, towards reapportionment. And, unlike illegal aliens, the excluded persons – be they tourists, foreigners on a temporary business trip, or diplomats – at the very least have a legal right to be in the country.

Counting illegal aliens to know how many are in the United States is important. As Americans, we have the right to know this. However, there is no logical or compelling reason why states with large numbers of unauthorized foreign nationals – that is, again, people who violated our laws and borders – should benefit from more representation and funding than states that respect the rule of law.