Representation and illegal immigration

While Americans count down to the Nov. 3 election, another important date looms that could affect the distribution of power in U.S. politics for the next decade. On Nov. 30, the Supreme Court will hear arguments on the Trump administration’s plan to exclude illegal immigrants from the final data set used to allot the seats in the U.S. House of Representatives.

The Constitution requires that every 10 years, the federal government count the “whole number of persons in each state.” Congress uses the population counts from each state to divvy up the 435 congressional representatives. Historically, the count has included people in the U.S. legally and illegally.

Federal law dictates the president receive the results of the decennial census by Dec. 31. Then, he must pass on the information to the clerk of the House of Representatives, who informs each state governor of the number of state representatives they can expect.

President Donald Trump plans to send to Congress two sets of data: one with and one without illegal immigrants. He wants the latter to determine the apportionment of House seats. Because the Supreme Court prevented the Trump administration from adding a question about citizenship to the census itself, the administration will rely on various government agencies to estimate the portion of illegal residents in each state.

In a July memorandum, Trump argued that to afford elected representation to people who did not come to the United States through legal methods would undermine “principles of representative democracy.”

The Pew Research Center projects Trump’s plan would mean Florida and Texas gain one fewer congressional seat than expected. California would lose two seats instead of only one. Meanwhile, Alabama, Minnesota, and Ohio would keep a seat they would otherwise lose.

The memo met with legal challenges almost immediately. A federal court in New York blocked Trump’s order, noting that throughout history the apportionment process has included “every person residing in the United States … whether citizen or non-citizen.”

Matthew Soerens, U.S. director of church mobilization with World Relief, called apportioning congressional districts without taking account of illegal immigrants impractical: “While noncitizens cannot vote, they still interact with government at various levels and in various ways.” For example, the children of illegal immigrants are allowed to attend school, according to the Supreme Court decision Plyler v. Doe. And about half of undocumented workers have payroll taxes withdrawn from their paychecks, Soerens said, “so it would make sense for those residents to be represented in the U.S. Congress, just as a representative or senator should take into account the interests of children even though they are ineligible to vote.”

The impending presidential election might complicate the matter. If Joe Biden wins, it’s unclear how much a new administration could do to reverse Trump’s handling of the census. The Supreme Court may anticipate such a dilemma in its ruling or leave the issue open for further litigation.

“If there is a new Congress and a new president, you could see President Biden and Democrats in Congress modifying [the U.S. code] to give Congress more authority and discretion in apportioning seats that are going on,” said Adam White, a constitutional scholar at the American Enterprise Institute.

Political controversy engulfed the U.S. census in 1920 after an immigration boom in Northeastern and Midwestern states. The process became so mired in contention that Congress ultimately decided not to reapportion the seats based on the data. Representatives from rural districts did not want to lose power to cities with booming populations. Finally, Congress passed a bill deciding to wait until the 1930 census to reapportion seats.

“If instead we get President Trump and a Democratic Congress … you could see a real breakdown over these questions of the president’s authority to oversee the counting and apportionment versus Congress’ [authority]. You could see real gridlock,” White said. “Even with a unified government, there will surely be lawsuits after the fact.”