Arguments over whether to count illegal aliens in apportionment may be moot.
By Nolan Rappaport

© Getty Images

On July 21, 2020, President Donald Trump issued an executive order to exclude undocumented aliens from the apportionment base that will be established this year by the 2020 Census. Apportionment is the process of dividing up the 435 seats in the House of Representatives among the 50 states according to population.

This has resulted in a flurry of lawsuits claiming that the order is unconstitutional, which seems to happen every time Trump issues an executive order on immigration. These challenges haven’t had much success when they reach the Supreme Court.
The most recent one claimed that adding a citizenship question to the 2020 Census was unconstitutional. The Court rejected that argument, but remanded the case on the ground that the Trump administration had violated the reasoned explanation requirement of administrative law.

In any case, those challenging the order should consider whether it is even possible for Trump to implement it before they waste a lot of time on unnecessary litigation — I don’t think it is.

The background

Article 1, Section 2, of the United States Constitution requires a census of the United States population every ten years to apportion seats in the U.S. House of Representatives and votes in the Electoral College.

The Electoral College is the formal body that elects the president and the vice president. Each state has as many "electors" in the Electoral College as it has Representatives and Senators in congress, and the District of Columbia has three.

Steven A Camarota and Karen Zeigler, point out that apportionment is a zero-sum system. When immigration adds more population to some states than to others, it redistributes political power in Washington.

According to Trump, States that adopt policies which make it easier for undocumented aliens to enter this country unlawfully and hobble efforts to enforce the immigration laws should not be rewarded with greater representation in the House of Representatives.

For instance, Trump says current estimates indicate that one State [California] has approximately 2.2 million undocumented aliens and that if undocumented aliens are included in determining the upcoming apportionment, it could get two or three more congressional seats than it would otherwise.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at