Kobach: President Trump Was Absolutely Correct to Exclude Illegal Aliens from Apportionment

On Tuesday, President Trump issued a memorandum that excludes illegal aliens from the counting of persons for congressional apportionment. It was a bold executive action that will do much to restore fairness in the apportionment of seats in Congress and bring it back into conformity with the Founders’ intentions.

In recent decades, illegal aliens have been counted along with U.S. citizens and lawful permanent resident aliens in the apportionment of congressional seats. President Trump is seeking to bring that to an end. Doubtless the ACLU and other progressives will fight to stop him in court. But he is on strong legal ground. And the country will be better off, for three reasons.

1. The Constitution requires it. Section 2 of the Fourteenth Amendment spells out how apportionment is to occur. “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.”  The reference to the “whole number of persons” was to make clear that, in addition to males of voting age, it also included women and children, both of which could not vote at that time, as well as all racial groups. (The Fifteenth Amendment, passed shortly after the Fourteenth Amendment, would establish that the former slaves were given the right to vote and that the right to vote could not be denied on the basis of race.)

The next sentence of the Fourteenth Amendment refers to “inhabitants” of each state. And it has long been understood that the reference to “persons” counted in apportionment means “inhabitants” of the state.

Illegal aliens, by definition, have no right to be considered inhabitants of any state. Federal law declares that they must be removed from the country. Clearly, merely being physically present in the country for some period of time does not entitle one to be counted in congressional apportionment. Just as temporary visitors vacationing in the United States are not counted, so too, illegal aliens cannot be counted.

2. States that welcome illegal immigration should not be rewarded. When illegal aliens are counted, states like California receive additional representatives in Congress, at the expense of other states. As President Trump’s memorandum notes, California likely has two or three extra seats in Congress because of its massive population of illegal aliens. Rewarding such states with extra power in Congress creates a perverse incentive for them to continue bringing in more illegal aliens.

And it’s a zero-sum game. If California or New York gain a seat in the House of Representatives because illegal aliens are counted, then some other state loses a seat. So those states that encourage respect for the law and do not harbor illegal aliens are punished. This is unfair, and it undermines the rule of law.

3. Counting illegal aliens violates the principle of one person, one vote. When illegal aliens are included in apportionment, it distorts the relative power of voters. Assume that illegal aliens constitute half of a congressional district and that U.S. citizens constitute the other half. In that district, the citizens have twice the voting power of citizens in a district with no illegal aliens. The principle that each person’s vote is of equal weight is at the very bedrock of our republic. But it has long been violated. President Trump is the first president to do something about it.

For these reasons, all Americans should applaud the President’s action. But we know that it is for these very same reasons that the Left will fight against it.

Kris W. Kobach is a candidate for the U.S. Senate in Kansas. He was a professor of constitutional law during 1996-2011 at the University of Missouri-KC. He served as the Secretary of State of Kansas during 2011-2019.