Proposed Law:
The Fair Apportionment and Census Integrity Act
Section 1: Findings and Purpose
(a) Findings: Congress finds that:
The presence of illegal aliens undermines federal immigration law.States that harbor illegal aliens gain an unfair advantage in congressional apportionment and federal funding, which is inconsistent with the rule of law.
Adjusting the apportionment population to account for illegal aliens is necessary to ensure fair representation and to discourage states from harboring such individuals.
(b) Purpose:
This Act aims to:
Exclude illegal aliens from contributing to a state’s political power in Congress.Impose a penalty on states with significant populations of illegal aliens by making each illegal alien count as a negative in the apportionment calculation.
Section 2: Definitions
(a) Illegal Alien: An individual who is not a citizen or national of the United States and is not lawfully present, as defined under the Immigration and Nationality Act (8 U.S.C. § 1101 et seq.).
(b) Apportionment Population: The population figure used to determine the number of representatives each state is entitled to in the House of Representatives, as calculated under this Act.
Section 3: Estimation of Illegal Alien Population
(a) Responsibility: The Secretary of Homeland Security, in consultation with the Director of the Census Bureau, shall estimate the number of illegal aliens residing in each state.
(b) Methodology: Estimates shall be based on the best available data, including:Immigration enforcement records (e.g., deportations, apprehensions).Statistical models and surveys (e.g., American Community Survey adjustments).Relevant state and local government data, if provided voluntarily.
(c) Timeline and Transparency:Estimates shall be published within 90 days after each decennial census.A 30-day public review and comment period shall follow publication.
(d) Challenge Process: States may challenge the estimates through an expedited administrative review, with final determinations made by the Secretary of Homeland Security.
Section 4: Adjustment to Apportionment Population
(a) Calculation: For apportioning representatives among the states, the apportionment population of each state shall be:The total number of persons enumerated in the decennial census for that state, minus twice the estimated number of illegal aliens residing in that state.
(b) Formula: [
\text{Apportionment Population} = P - 2I
]
Where:( P ) = Total number of persons counted in the census for the state.( I ) = Estimated number of illegal aliens residing in the state.
(c) Effect: This adjustment ensures that each illegal alien effectively counts as negative one (-1) in the apportionment calculation:
Illegal aliens are included in ( P ) as +1 (per the census).
Subtracting ( 2I ) removes their count (( I )) and imposes an additional penalty (( I )), resulting in a net effect of -1 per illegal alien.
Section 5: Implementation and Safeguards
(a) Census Integrity: The Census Bureau shall continue to count all persons in the decennial census, as required by the Constitution. This Act adjusts only the apportionment population, not the census enumeration.
(b) Methodology Transparency: The Secretary of Homeland Security shall publish a detailed explanation of the data sources and methods used to estimate ( I ), ensuring accountability and public trust.
(c) Data Reliability: The Secretary shall use multiple data sources and conservative estimation techniques to enhance the accuracy and defensibility of the estimates.
Section 6: Legal Provisions
(a) Statutory Amendment: This Act amends Section 2a of Title 2, United States Code, to incorporate the apportionment population calculation defined in Section 4.
(b) Severability: If any provision of this Act is found unconstitutional, the remaining provisions shall remain in effect.
(c) Expedited Judicial Review: Legal challenges to this Act or the estimates under Section 3 shall be subject to expedited review by federal courts.
Explanation of the Approach
Legal Foundation
Constitutional Context:
The U.S. Constitution (Article I, Section 2, Clause 3) mandates a census to count “the whole number of persons in each State” for apportionment. Historically, this has included all residents, regardless of citizenship or immigration status. However, the Constitution does not explicitly dictate how the census count must be used for apportionment, leaving Congress some flexibility to define the apportionment process (e.g., via Title 2, U.S. Code).
Approach:
This law preserves the census’s constitutional requirement to count all persons but adjusts the apportionment population afterward. By framing the change as an apportionment adjustment rather than an alteration of the census itself, it aims to withstand legal scrutiny, though challenges are likely.
Key Features
Negative Counting Mechanism:
The formula ( P - 2I ) achieves the goal of making each illegal alien count as -1:( P ) includes illegal aliens (counted as +1 each in the census).Subtracting ( 2I ) effectively cancels their contribution (( I )) and subtracts an additional ( I ), yielding a net effect of -1 per illegal alien.
For example, if a state has 10 million total persons (( P )), including 1 million illegal aliens (( I )), the apportionment population would be: [
10,000,000 - 2 \times 1,000,000 = 10,000,000 - 2,000,000 = 8,000,000
]
This reduces the state’s representation as a penalty.
Estimation Process:
Since the census does not collect immigration status, the Department of Homeland Security (DHS) is tasked with estimating ( I ) using existing data (e.g., enforcement records, statistical models). This leverages federal expertise while avoiding changes to the census questionnaire, which could reduce participation.
Transparency and a challenge process mitigate concerns about accuracy or bias, strengthening the law’s defensibility.
Punitive Intent:
By making illegal aliens count as -1, the law penalizes states with large undocumented populations, reducing their congressional seats. This incentivizes states to align with federal immigration enforcement, fulfilling the punitive aspect of the query.
Addressing Challenges
Constitutional Risks:
Critics may argue that subtracting illegal aliens (and more) from apportionment violates the “whole number of persons” clause. The law counters this by:Maintaining an unadjusted census count.Citing Congress’s authority to regulate apportionment (e.g., historical adjustments like the three-fifths compromise or overseas personnel allocations).
Framing the adjustment as a policy choice to uphold immigration law integrity.
Practicality: Estimating ( I ) is inherently imprecise. The law mitigates this by requiring robust, transparent methods and allowing state input, reducing the risk of arbitrary or unfair penalties.
Precedent: While unprecedented in scope, apportionment adjustments have occurred (e.g., overseas federal employees). This law extends that logic, though courts may still question its constitutionality.
Why It’s Ironclad (Within Limits)
Statutory Clarity: The law amends existing apportionment statutes (Title 2), providing a clear legal basis.Safeguards: Transparency, severability, and expedited review enhance resilience against legal or administrative setbacks.
Flexibility: By separating the census count from apportionment, it respects constitutional text while achieving the policy goal.
Conclusion
The Fair Apportionment and Census Integrity Act offers a legally grounded approach to exclude illegal aliens from contributing to congressional apportionment and impose a negative count (-1 per illegal alien) as a penalty on states.
While no law can be entirely immune to constitutional challenges given the census’s broad mandate, this proposal maximizes defensibility through careful design, transparency, and adherence to Congress’s apportionment authority. It achieves the query’s objectives while navigating the complex interplay of law, policy, and practicality.