Congressional Seats and Federal Outlays

March 2013

Most Americans know that their representation in the U.S. House of Representatives is based on proportional representation as determined by the decennial Census. And, many Americans are aware that the Census takers try to count everybody residing in the country. But, most Americans do not make the connection that illegal immigrants and other foreigners who are not legal permanent residents are part of the calculation for the apportionment of Congressional representatives. If the population of illegal aliens and other long-term foreign residents were inconsequential, this would not be an important issue. However, with 22.5 million non-U.S. citizen foreign residents counted in the 2010 Census, this is a valid major concern. 

Because illegal aliens should not even be in the country, and other nonimmigrants such as foreign students and guest workers are here only temporarily, it makes no sense to distribute Congressional seats as if these foreign nationals deserved representation the same as American citizens. 

The U.S. population that logically should be enumerated includes U.S. citizens and legal permanent residents (immigrants). As only the former may vote in federal elections, the apportionment of seats in Congress should be done on the basis of the number of U.S. citizens in each state.¹ Similarly, apportionment of federal funds should be based on the number of citizens and legal residents of each state. 

Some federal funding programs provide compensation to the states based on mandated expenditures for foreign residents, i.e., emergency medical care, incarceration, English language learning. The number and identity of these non-citizen users of these services is appropriately collected by the service provider and should be provided to the federal government as a condition precedent to receiving any distribution of federal funds.

On the basis of the current Census questionnaire, however, there is no way to determine if a foreign resident is legally or illegally in the country. But the Census does ask whether persons are U.S. citizens. It could also ask persons who are not U.S. citizens if they are legal permanent residents (“green card” holders). 

As a result of the current incoherent system of allocating Congressional seats based on all persons counted in the Census, some Member of Congress represent many fewer U.S. citizens and permanent residents than others. Similarly, some states that have large numbers of illegal aliens and other non-citizens gain the advantage of additional representation in Congress at the expense of states that have fewer illegal aliens and non-citizens, since the total number in the House of Representatives is currently fixed by law at 435 members. 

Besides the distortions in apportionment of representation among the states and in the number of U.S. citizens in each Congressional district, the Census also causes distortions when it is used to allocate federal public assistance funds among the states because nonimmigrants, including illegal aliens, are not entitled to public welfare. 

If apportionment based on U.S. citizenship had been in force following the 2010 Census, the distribution of seats in the House of Representatives would have been as shown in the chart below (states not listed would have no change).

As may be seen from the reallocation of seats based on the distribution of U.S. citizens, the states with large illegal and resident nonimmigrant populations currently gain influence in the law making process as a result of the current distribution of congressional seats. The perverse effect of this current apportionment process is that it encourages states to accommodate the presence of persons who constitute a major fiscal burden on their citizenry.

If the seats in the House of Representative were reapportioned based on the distribution of U.S. citizens, the big loser of seats would be California, losing 5 seats. Texas would lose two seats, and three other states with large immigrant populations both legal and illegal would also lose one seat each, i.e., Florida New York and Washington. The winners in this reallocation of congressional representation would be the residents of Delaware, Idaho, Indiana, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, and Pennsylvania. Those states each would have gained one additional representative.

If seats in the House had been allocated on the basis of U.S. citizenship it also would have changed the vote for president in the Electoral College, as that is based on the number of Senators and Representatives a state has in the U.S. Congress. It would not have affected the reelection of President Obama, but it would have switched a net of three votes from Obama to Romney.

Section 2 of the 14th Amendment to the Constitution provides, “Representatives 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.” Section 1 of the same Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The order of these two Sections implies that the persons upon whom apportionment is to be made are persons born or naturalized in the United States.