Author: Mike Nova

Amid the chaotic first months of the second Trump Administration, too little attention has been paid to recent debates over seemingly obscure 2030 census-related legislation that aims to subvert how the U.S. House of Representatives (and thereby the Electoral College) is reapportioned.

Last term, the Republican House majority adopted the so-called “Equal Representation” bill of 2024 with little fanfare. It aimed to require the inclusion of a citizenship question on the 2030 census. The measure would have also commanded the U.S. Census Bureau and the Commerce Department to employ that data to exclude noncitizens from the population when reallocating states’ seats to the House of Representatives. Though the 2024 bill died in the last Congress, recent hearings indicate that GOP leaders could introduce similar legislation in this Congress.

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This is not the first time that Congress has strenuously debated legislation seeking to exclude noncitizens from federal apportionment policy. Indeed in the 1920s nativists in Congress routinely introduced “citizen-only” reapportionment bills as a means of delaying the decennial reallocation of House seats as required by the federal constitution. Then, as now, such measures have a fatal flaw at their core: the national constitution unequivocally requires that the “whole number” of all residents in the country—regardless of citizenship status—be counted as part of the country’s population for the purposes of federal reapportionment. But congressional history also teaches that anti-alien bills, however unconstitutional, represent major roadblocks to the operation of federal reapportionment that can metastasize into a veritable constitutional crisis.

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The Founders famously and vigorously debated congressional apportionment policy at the Philadelphia Constitutional Convention of 1787. They eventually agreed that a national decennial census would be established and used to apportion seats to the House of Representatives. The Constitution further stipulated that the House would be reapportioned every ten years based on the federal census’s count of the total population, while infamously excluding “Indians not Taxed” and counting enslaved persons at a three-fifths ratio.

Eighty years later, federal apportionment policy once again emerged as a key topic of constitutional revision in the wake of the Civil War. Proponents of Black suffrage rights fought hard to ensure that the 14th Amendment’s birthright citizenship and equal protection guarantees, enshrined in its first clause, were coupled with an apportionment penalty provision, its second clause. The latter threatened to reduce the number of House seats assigned to states if they disfranchised male U.S. citizens for reasons other than crime or rebellion. The terms of the penalty provision—expanded to American women by virtue of the 19th Amendment—have never been enforced. And subsequent federal legislation would do away with the “Indians not Taxed” apportionment provision in practice.

Less remembered today, Reconstruction-era lawmakers also overtly debated whether to include or exclude noncitizen immigrants, and other groups, from the basis of congressional reapportionment. They ultimately voted to retain a total population basis—thereby including all noncitizen immigrants—when writing and approving the 14th Amendment. That standard has remained part of the Constitution ever since. Half a century later, a powerful bloc of federal politicians would nevertheless try to subvert that unambiguous constitutional requirement.

The results of the 1920 census showed a rapidly urbanizing population, propelled largely by the millions of working-class (often Southern and Eastern European) immigrants and their children who had moved to the country’s industrial centers in preceding decades. Many national lawmakers—especially southern Democrats and rural Republicans who also supported draconian federal immigration restriction legislation—feared they and their factional allies would lose relative power (or even their seats), with Congress set to be reapportioned for the 1922 midterms. In response, these recalcitrant members of Congress simply refused to adopt must-pass federal reapportionment legislation. For the first and only time in U.S. history, Congress failed to meet its constitutional requirement to reallocate states’ respective number of House seats every ten years. 

Lawmakers in this camp increasingly embraced nativist rhetoric and anti-alien reapportionment legislation to justify their strategy of gridlock. Republican Representative Homer Hoch of Kansas claimed it was unfair that other states were set to gain seats in the House to the detriment of his own due to the “inclusion of thousands of unnaturalized aliens” in the count. Others, like the noxious white supremacist Representative John Rankin, were less subtle. The Mississippi Democrat deemed it an outrage that California was set to gain “nine additional seats” after the 1930 enumeration in part because “thousands of Mexicans and oriental aliens” were (rightly) counted as part of the Golden State’s population.

In response, a bipartisan coalition emerged to fight back against these anti-alien apportionment bills. Opponents, including political titans like New York lawmakers Republican Fiorello La Guardia and Democrat Emanuel Celler, marshalled numerous arguments against these nativist schemes and the inequity in representation produced by the gridlock over reapportionment. Opponents often argued that anti-alien apportionment bills threatened “taxation without representation.” Congressman James Beck, a conservative Republican from Pennsylvania and a former U.S. Solicitor General, went further. He alleged that supporters of anti-alien apportionment schemes were trying to “virtually” effect “a coup d’état” by subverting the Constitution’s requirements.

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Beck, La Guardia, and their allies ultimately won the long battle in Congress. For the 1932 elections, the House was reapportioned, based on what was constitutionally required: total population figures. The House has been similarly reapportioned every ten years since.      

Just under six years ago, the first Trump Administration’s attempt to add a citizenship question on the main census form abruptly—if briefly—put this topic back on the national radar. That effort was famously rebuffed by the U.S. Supreme Court when the Commerce Department’s stated rationale for adding a citizenship question was proven to be misleading. In a close 5-4 decision, the Court ultimately penalized the Trump Administration by rejecting the addition of a citizenship question on process—not substantive—grounds.

The second Trump Administration is unlikely to make the same mistake again. However, even if a citizenship question was included on a subsequent enumeration, the U.S. Supreme Court should— and very likely still would—strike down federal anti-alien reapportionment legislation as a blatant affront to the Constitution’s requirements.

But federal lawmakers should first carefully weigh whether they want to replay 1920s-style politics of apportionment at all. Members of Congress from both parties hailing from states with growing immigrant populations risk curtailing their own states’ share of federal funding and relative power in the House and Electoral College. Confusion, gridlock, and even delay—this time ensnaring the courts as well—remain possible outcomes of anti-alien apportionment debates in the 2020s.

A century ago, a coalition of lawmakers from both parties thought federal nativist reapportionment schemes ran counter to their personal political interests, harmed their constituents, produced an unfair and unrepresentative delay, and were just plain unconstitutional. In response, they pushed back against their opponents irrespective of party lines and, eventually, won the day.

Their successors might very well find themselves in a similar predicament soon. Lawmakers today should consider taking a page from that history and forthrightly reject anti-alien reapportionment proposals before this little-noticed subject can metastasize into a full-blown constitutional crisis.

Brendan A. Shanahan is an associate research scholar at Yale University’s MacMillan Center for International and Area Studies, and a lecturer in the Department of History. He teaches courses on the history of U.S. immigration and citizenship policy, and comparative Canadian and American political history. He is the author of Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States, 1865-1965 (New York: Oxford University Press, 2025).

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