President Trump Seeks to Ensure Fair Representation for American Citizens | Opinion

Should American citizens lose representation in Congress and lose out on billions of dollars in federal funding to their communities, and have that representation and funding awarded to people who are illegally present in the United States?

In a more rational time, the answer to that question would be obvious. But we're not living in rational times. So President Donald Trump's memorandum, signed on Tuesday, which attempts to at least minimize the harmful effect of including people who are here illegally in the Census—for the purpose of reapportioning congressional representation—was predictably met with howls of protest and lawsuits filed.

Very few things in life are zero-sum, where one person's gain is offset by a precisely corresponding loss to someone else. The Census is one of those rare exceptions. The number of seats in the House of Representatives is fixed at 435, which means that if one state gains a seat, another state necessarily loses one. That shift in representation is fair as long as it is influenced by phenomena like citizens and legal residents deciding to escape the harsh winters in Michigan and settle in sunny Florida, or people fleeing high taxes or economic stagnation in one state in pursuit of better government and economic opportunities in another.

It is quite another matter when additional representation in Congress is awarded to some states because they have large concentrations of people living there illegally. In years past, states that picked up representation in Congress by virtue of large populations of people illegally present in the United States have been passive beneficiaries of this phenomenon.

However, in recent decades, state and local governments have been guilty of putting their fingers on the scale. Sanctuary policies that shield unlawful migrants from federal law enforcement, as well as generous benefits like health coverage and subsidized college tuition, induce such people to take up residence in these states and localities.

California, a state that has gone out of its way to attract and protect immigration law violators, is likely to reap three or four additional House seats at the expense of other states, much as it did after the 2010 Census. The result is not only additional seats in Congress, but more federal dollars flowing to states with large unauthorized populations, as well as greater influence in presidential elections—after all, each state's number of Electoral College votes is based on the number of House seats it is apportioned.

The president's "Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census" is a good-faith effort to use what data are available to identify unauthorized aliens, where they live and subtract those numbers from the count for the purpose of apportioning House seats for the next decade. Those identified would still be included in the gross tally of the number of people residing in the United States, as required by the Constitution. However, the memorandum would prevent states from increasing their political power and their share of federal appropriations by encouraging and abetting illegal immigration.

U.S. Census form in mail
U.S. Census form in mail Smith Collection/Gado/Getty Images

Admittedly, the White House's belated attempt to ensure fair representation based on legally present individuals in the United States would have only a limited impact on reapportionment, even if the president prevails in the inevitable legal challenges. The data needed to effectively exclude those living here illegally from influencing the apportionment of federal representation is incomplete, either because the federal government has been remiss in assembling it or because state and local governments refuse to share the data they have. But the principle behind the memorandum is a sound one—in a representative democracy, citizens and legal immigrants should not lose representation to people who are illegally present in the country.

Given the prevailing hyper-partisanship, a political resolution that safeguards representation for citizens is unlikely. That will almost certainly have to be decided in the courts (like just about everything else nowadays). Even as the advocates for unauthorized immigrants and their army of lawyers hurriedly prepare to stop the president's latest memorandum from going into effect, another case, Alabama v. United States Department of Commerce, may hold the key to ensuring fair representation to American citizens in this Census—or at least in future ones.

Alabama is one of the states that will almost certainly lose representation, federal funding and Electoral College votes if illegal aliens are included in the reapportionment equation. A favorable ruling for Alabama would supersede the president's order and ensure that mechanisms be put in place for future censuses such that law-abiding citizens do not lose representation and federal dollars to those here illegally—and to states that encourage illegal immigration.

Dan Stein is president of the Federation for American Immigration Reform in Washington, D.C.

The views expressed in this article are the writer's own.