[House Report 118-476]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-476
======================================================================
EQUAL REPRESENTATION ACT
_______
April 29, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Comer, from the Committee on Oversight and Accountability,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 7109]
The Committee on Oversight and Accountability, to whom was
referred the bill (H.R. 7109) to require a citizenship question
on the decennial census, to require reporting on certain census
statistics, and to modify apportionment of Representatives to
be based on United States citizens instead of all persons,
having considered the same, reports favorably thereon with
amendments and recommends that the bill as amended do pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 2
Background and Need for Legislation.............................. 2
Section-by-Section Analysis...................................... 6
Legislative History.............................................. 7
Committee Consideration.......................................... 8
Roll Call Votes.................................................. 8
Explanation of Amendments........................................ 10
List of Related Committee Hearings............................... 10
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 11
Statement of General Performance Goals and Objectives............ 11
Application of Law to the Legislative Branch..................... 11
Duplication of Federal Programs.................................. 11
Disclosure of Directed Rule Makings.............................. 11
Federal Advisory Committee Act Statement......................... 11
Unfunded Mandates Reform Act Statement........................... 11
Earmark Identification........................................... 11
Committee Cost Estimate.......................................... 12
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 12
Changes in Existing Law Made by the Bill, as Reported............ 12
Minority Views................................................... 16
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equal Representation Act''.
SEC. 2. CITIZENSHIP STATUS ON DECENNIAL CENSUS.
Section 141 of title 13, United States Code, is amended--
(1) by redesignating subsection (g) as subsection (h); and
(2) by inserting after subsection (f) the following:
``(g)(1) In conducting the 2030 decennial census and each decennial
census thereafter, the Secretary shall include in any questionnaire
distributed or otherwise used for the purpose of determining the total
population by States a checkbox or other similar option for the
respondent to indicate, for the respondent and for each of the members
of the household of the respondent, whether that individual is a
citizen of the United States.
``(2) Not later than 120 days after completion of a decennial census
of the population under subsection (a), the Secretary shall make
publicly available the number of individuals per State, disaggregated
by citizens of the United States and noncitizens, as tabulated in
accordance with this section.''.
SEC. 3. EXCLUSION OF NONCITIZENS FROM NUMBER OF PERSONS USED TO
DETERMINE APPORTIONMENT OF REPRESENTATIVES AND
NUMBER OF ELECTORAL VOTES.
(a) Exclusion.--Section 22(a) of the Act entitled ``An Act to provide
for the fifteenth and subsequent decennial censuses and to provide for
apportionment of Representatives in Congress'', approved June 18, 1929
(2 U.S.C. 2a(a)), is amended by inserting after ``not taxed'' the
following: ``and individuals who are not citizens of the United
States''.
(b) Effective Date.--The amendment made by subsection (a) shall apply
with respect to the apportionment of Representatives carried out
pursuant to the decennial census conducted during 2030 and any
succeeding decennial census.
SEC. 4. SEVERABILITY CLAUSE.
If any provision of this Act or amendment made by this Act, or the
application thereof to any person or circumstance, is held to be
unconstitutional, the remainder of the provisions of this Act and
amendments made by this Act, and the application of the provision or
amendment to any other person or circumstance, shall not be affected.
Amend the title so as to read:
A bill to require a citizenship question on the decennial
census, to require reporting on certain census statistics, and
to modify apportionment of Representatives to be based on
United States citizens instead of all individuals.
Summary and Purpose of Legislation
H.R. 7109 directs the inclusion of a question on the
decennial census questionnaire for each respondent to indicate
for themselves and for each household member whether they are a
citizen of the United States. It also amends existing statutes
to make clear that only citizens are included in the population
of a state for the purpose of apportioning representatives and
numbers of electors for President of the United States among
the states.
Background and Need for Legislation
I. CITIZENSHIP QUESTION ON THE DECENNIAL CENSUS QUESTIONNAIRE
The decennial census should collect information about the
citizenship status of a respondent or household member. The
citizenship makeup of the population in the United States is a
basic data point that should be available to U.S. policymakers,
and the decennial census questionnaire is the best way to
obtain such detailed information on citizenship status.
Article I of the U.S. Constitution requires a census of the
population be taken every ten years to form the basis of
apportionment and empowers Congress to carry out the decennial
census ``in such Manner as they shall by Law direct.''\1\ The
Supreme Court has explained that Congress is permitted by the
Constitution ``to inquire about citizenship on the census
questionnaire.''\2\ ``That conclusion follows from Congress's
broad authority over the census, as informed by long and
consistent historical practice that `has been open, widespread,
and unchallenged since the early days of the republic.'''\3\
Thus, adding a citizenship question to the decennial census
questionnaire is an appropriate exercise of the Article I
authority over the census.
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\1\U.S. Constitution, Article I, Sec. 2, cl. 3 (. . . ``The actual
Enumeration shall be made within three Years after the first Meeting of
the Congress of the United States, and within every subsequent Term of
ten Years, in such Manner as they shall by Law direct. . .'').
\2\Department of Commerce v. New York, 588 U.S. ___ (2019).
\3\Id. at Syllabus headnote 2 (citing NLRB v. Noel Canning, 573
U.S. 513, 572 (Scalia, J., concurring in judgment)).
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This data collection is also necessary to provide reliable
and accurate data to U.S. policymakers. Current data on
citizenship collected by the Census Bureau in the American
Community Survey is limited to annual estimates suffering from
high rates of error. In contrast, the decennial census is an
actual enumeration of the entire population of the United
States, so the data on citizenship collected from respondents
and their household members would be much more accurate.
Despite the minority's claims, adding a citizenship
question will not reduce overall participation in the census.
Answering whether an individual respondent or household member
is or is not a citizen reveals only that data point. It does
not reveal if an individual respondent or household member is
present in the United States unlawfully. That individual
respondent or household member could have lawful permanent
residence or be a nonimmigrant lawfully residing in the United
States during a temporary period of authorized stay.
Additionally, only aggregate-level information will be
released, as current law already imposes strict confidentiality
requirements on the dissemination of individual-level census
data tied to a particular respondent or household with criminal
penalties for violations.\4\ Thus, a citizenship question
should not depress participation in the decennial census by
aliens residing in the United States. Even if misinformed
respondents were for some reason reluctant to complete the
decennial census questionnaire, they would still likely be
enumerated by the Census Bureau using other methods such as
review of official records to determine the inhabitants of a
particular address or by using proxy information such as
reliable information from a neighbor.
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\4\See 13 U.S.C. Sec. Sec. 9, 214.
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II. APPORTIONMENT EXCLUSION
In addition to collecting whether a respondent or household
member is a citizen of the United States, H.R. 7109 would
restore the ``one person, one vote'' principle in apportionment
by including only citizens in the apportionment base used to
apportion representation in the House of Representatives and
allocate electoral college votes.
Only citizens are eligible to vote for candidates for
federal offices, including Members of Congress and electors for
the President of the United States.\5\ However, under current
practice, noncitizens, including lawful permanent residents,
nonimmigrants, and even illegal aliens, are wrongly included in
a state's population for purposes of the apportionment
calculation. Thus, states with higher proportions of
noncitizens residing in that state are advantaged over states
with a lower concentration of noncitizens.
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\5\See 18 U.S.C. Sec. 611 (making it unlawful for aliens to vote in
elections for federal offices).
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In the case of illegal aliens, the status quo is
particularly concerning, as some states or major metropolitan
areas within those states have declared themselves sanctuary
jurisdictions, shielding illegal aliens from federal
immigration law enforcement with some even providing special
services to the illegal alien population residing in those
jurisdictions. Illegal aliens incentivized to move into those
jurisdictions, who reside in that state on census day, and who
are enumerated in the census, would add to the state's
population for purposes of apportionment. Under the Biden
Administration, millions of illegal aliens have entered the
country. It is estimated that the total illegal alien
population in the United States has increased since President
Biden took office by 3.7 million individuals as of February
2024, accounting for departures and mortality.\6\ This means
that illegal immigration inflows under the Biden Administration
account for well more than half (58 percent) of the growth in
the total foreign-born population in the Untied States during
that same time period.\7\
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\6\Steven A. Camarota & Karen Zeigler, The Foreign-Born Share and
Number at Record Highs in February 2024, Center for Immigration Studies
(Mar. 28, 2024).
\7\Id.
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According to now already outdated 2022 estimates published
by the Census Bureau based on American Community Survey data,
there were approximately 21.7 million noncitizens residing in
the United States and the District of Columbia.\8\ However,
these noncitizens were not evenly distributed among the states.
For example, California's population was made up of more than
12 percent noncitizens, which comprised 4.75 million of the
state's total 39 million population.\9\ New York's noncitizen
population comprised 8.8 percent of its total population.\10\
Meanwhile, other states had fewer noncitizens. Specifically,
Alabama and Kentucky were both comprised of only 2.2 percent
noncitizens, Ohio and Louisiana both 2.3 percent, Mississippi
1.3 percent, and West Virginia only 0.76 percent.\11\
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\8\See U.S. Census Bureau, 2022: ACS 1-Year Estimates Selected
Population Profiles, SO201 Selected Population Profile in the United
States (Foreign Born; not a U.S. citizen=21,673,046
+/- 149,842).
\9\Id.
\10\Id.
\11\Id.
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These drastic differences can have an impact on
representation distributions as a result of apportionment,
especially where--as a single congressional seat must go to a
state and cannot be divided among multiple states--small
differences in population can be the deciding factor between a
state gaining or losing an additional representative in its
delegation. For example, New York lost a congressional seat
that it otherwise would not have lost by a margin of only 89
individuals during the 2020 apportionment.\12\ Utah would have
gained an additional Congressional seat in the 2000
apportionment but for a difference of only 856 additional
individuals.\13\ An analysis by Pew Research Center in 2020,
prior to the completion of the 2020 decennial census or
apportionment based on that census, estimated that excluding
only illegal aliens from the apportionment base would have a
significant impact on representation.\14\ Specifically, the Pew
study projected that California would lose two seats instead of
one it was expected to lose, that Florida would gain only one
additional seat instead of two, and that Texas would gain only
two instead of three additional seats while Alabama, Minnesota,
and Ohio would each maintain a seat they would otherwise lose.
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\12\See U.S. Census Bureau, Table B2. Additional Apportionment
Population Needed for First Runner-Up State to Gain Another
Congressional Seat: 1940 to 2020.
\13\Id.
\14\Jeffrey S. Passel & D'Vera Cohn, How removing unauthorized
immigrants from census statistics could affect House reapportionment,
Pew Research Center (July 24, 2020).
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Section 2 of the 14th Amendment to the Constitution
requires that ``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.''\15\ Section 5 of the 14th Amendment makes clear
that Congress has the power ``to enforce, by appropriate
legislation'' the provisions of the 14th Amendment, which it
did with respect to Section 2 by passing implementing
legislation that would be amended by H.R. 7109. Specifically,
H.R. 7109 would exclude from the apportionment base
``individuals who are not citizens of the United States.''
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\14\U.S. Constitution, Amdt. 14, Sec. 2.
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The minority argues that ``whole number of persons'' refers
to any individual who manages to take up residence in the
United States, whether they are citizens or noncitizens, and
even if they do not reside in the United States under color of
law, having entered the country unlawfully in the first place,
or having somehow violated the terms of their lawful status or
having failed to depart after the expiration of an authorized
period of stay. This argument misunderstands the historical
context of Section 2 of the 14th Amendment, which altered the
prior Constitutional practice of counting enslaved individuals
as partial persons. The phrase ``whole number of persons'' was
specifically enacted to make clear that the drafters rejected
counting individuals as partial persons as had been done since
the Constitution directed the first enumeration and
apportionment with respect to individuals who were
enslaved.\16\ Thus, ``whole number of persons'' clearly
signifies that an individual who counts for purposes of
apportionment counts in their entirety. However, it does not in
any way signify that any person taking up residence in a state
must be counted for purpose of apportionment, and certainly not
that noncitizens must be included in the apportionment base.
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\16\U.S. Constitution, Article I, Sec. 2, cl. 3 (``Representatives
and direct Taxes shall be apportioned among the several States which
may be included within this Union, according to their respective
Numbers, which shall be determined by adding to the whole Number of
free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons . .
.'').
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The minority also argues that court decisions dictate that
any individual, including an illegal alien, who takes up
residence in a state must be included in that state's
population for purposes of apportionment of representation.
This is also incorrect. The Supreme Court specifically declined
in late 2020 to rule on the issue of whether the President
could unilaterally, under existing statutes, exclude unlawful
aliens from the apportionment base.\17\ In this case, it is
Congress acting well within its authority to legislate under
its authority in Section 5 of the 14th Amendment to amend the
implementing statutes governing the implementation of Section
2. Moreover, there is no constitutional impediment. Even the
dissent in that case, which would have substantively ruled on
the merits of the issue, took care to ``avoid the
constitutional dispute and resolve this case on the statutory
question alone'' and that ``. . . the question is the meaning
of the statute enacted in 1929.''\18\ H.R. 7109 amends that
very statute to explicitly exclude noncitizens from the
apportionment base.
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\17\Trump v. New York, 592 U.S. ___ (2020).
\18\Id. (Bryer, J., dissenting).
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Finally, it should be noted that the framers very clearly
envisioned a President who would enforce the laws, and did not
contemplate a President who so undermined the rule of law that
the ``one person, one vote'' principle would be undermined
through his actions. It is explicitly written in Article II,
Section 3 of the Constitution that ``. . . he shall take Care
that the Laws be faithfully executed . . .''.\19\ President
Biden has failed to faithfully execute the laws of the United
States, including various provisions of the Immigration and
Nationality Act, and by his actions has undermined border
security, national security, and created a dangerous and
lawless environment at the border and throughout the United
States. In addition to failing to enforce the law against
millions of illegal aliens, President Biden has abused limited
statutory authority to parole into the country inadmissible
aliens--for significant public benefit or urgent humanitarian
reasons--millions of illegal aliens who will take up residence
in the United States. Absent the passage of H.R. 7109 into law,
these millions of illegal aliens will be counted for purposes
of apportionment, erode the ``one person, one vote'' principle,
and reward a President who has placed illegal aliens and desire
for a politically strategic advantage for his party in the
electoral college over his constitutional duty to take care to
faithfully execute the laws of the United States. By passing
H.R. 7109, representation will be returned to the citizens of
the United States.
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\19\U.S. Constitution, Article II, Sec. 3.
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Section-by-Section Analysis
Section 1. Short title
The short title is the ``Equal Representation Act''
Section 2. Citizenship status on decennial census
Subsection (a) amends Section 114 of title 13, U.S. Code to
direct the Secretary of Commerce to include on the 2030
decennial census questionnaire (and for any subsequent census)
a question for the respondent to indicate for the respondent
and each member of the household, whether that individual is a
citizen of the United States. It also directs the Secretary of
Commerce to publish the number of individuals per State,
disaggregated by citizens of the United States and noncitizens,
within 120 days of completing each decennial census.
Section 3. Exclusion of noncitizens from number of persons used to
determine apportionment of representatives and number of
electoral votes
Subsection (a) amends section 2a(a) of title 2, U.S. Code
(Reapportionment of Representatives), to require the President
to transmit to Congress a statement showing the whole number of
persons in each State and the number of Representatives to
which each State would be entitled under apportionment, to
exclude ``individuals who are not citizens of the United
States'' from such apportionment.
Subsection (b) states that the amendment made by subsection
(a) shall apply with respect to the apportionment of
Representatives carried out pursuant to the decennial census
conducted during 2030 and any succeeding decennial census.
Section 4. Severability clause
States if any provision of this Act or amendment made by
this Act, or the application thereof to any person or
circumstance, is held to be unconstitutional, the remainder of
the provisions of this Act and amendments made by this Act, and
the application of the provision or amendment to any other
person or circumstance, shall not be affected.
Legislative History
H.R. 7109, the Equal Representation Act, was introduced on
January 29, 2024, by Representative Chuck Edwards. The
following Representatives are cosponsors of the bill: Warren
Davidson (R-OH), Andrew Ogles, (R-TN), Gus Bilirakis (R-FL),
Jeff Duncan (R-SC), Russell Fry (R-SC), Glenn Grothman (R-WI),
Scott DesJarlais (R-TN), William Timmons (R-SC), Keith Self (R-
TX), John R. Curtis (R-UT), Mary Miller (R-IL), Bill Posey (R-
FL), Aaron Bean (R-FL), Barry Moore (R-AL), John W. Rose (R-
TN), Laurel M. Lee (R-FL), Randy K. Weber (R-TX), Debbie Lesko
(R-AZ), Mike Collins (R-GA), Garret Graves (R-LA), Brian Babin
(R-TX), Alexander X. Mooney (R-WV), Carol D. Miller (R-WV),
Charles J. ``Chuck'' Fleischmann (R-TN), August Pfluger (R-TX),
Thomas P. Tiffany (R-WI), Kevin Hern (R-OK), Brad Finstad (R-
MN), Dusty Johnson (R-SD), Tony Gonzales (R-TX), Randy Feenstra
(R-IA), Paul Gosar (R-AZ), Kat Cammack (R-FL), Ben Cline (R-
VA), Doug LaMalfa (R-CA), Cory Mills (R-FL), Mike Bost (R-IL),
Jim Banks (R-IN), Dale Strong (R-AL), Eric Burlison (R-MO),
Erin Houchin (R-IN), Dan Bishop (R-NC), Michael Guest (R-MS),
Robert E. Latta (R-OH), Richard McCormick (R-GA), Andy Biggs
(R-AZ), Elijah Crane (R-AZ), Guy Reschenthaler (R-PA), David
Rouzer (R-NC), Pete Sessions (R-TX), Ralph Norman (R-SC), John
R. Carter (R-TX), Lance Gooden (R-TX), Stephanie Bice (R-OK),
John R. Moolenaar (R-MI), Troy Balderson (R-OH), Scott
Fitzgerald (R-WI), Bruce Westerman (R-AR), Jim Jordan (R-OH),
Roger Williams (R-TX), Troy E. Nehls (R-TX), Doug Lamborn (R-
CO), Rudy Yakym (R-IN), Josh Brecheen (R-OK), Tracey Mann (R-
KS), Mike Garcia (R-CA), Marjorie Taylor Greene (R-GA), Rick W.
Allen (R-GA), Nathaniel Moran (R-TX), Scott C. Franklin (R-FL),
Pat Fallon (R-TX), Ashley Hinson (R-IA), Larry Bucshon (R-IN),
Bob Good (R-VA), Clay Higgins (R-LA), Max L. Miller (R-OH),
Lisa C. McClain (R-MI), Harriet M. Hageman (R-WY), Sam Graves
(R-MO), Gary Palmer (R-AL), Adrian Smith (R-NE), Nicholas A.
Langworthy (R-NY), Mike Flood (R-NE), Diana Harshbarger (R-TN),
Andrew S. Clyde (R-GA), Brad R. Wenstrup (R-OH), Mark E. Green
(R-TN), Ann Wagner (R-MO), Michelle Fischbach (R-MN), Byron
Donalds (R-FL), W. Gregory Steube (R-FL), Lauren Boebert (R-
CO), Daniel Meuser (R-PA), Wesley Hunt (R-TX), Neal P. Dunn (R-
FL), Matthew M. Rosendale (R-MT), Nancy Mace (R-SC), Michael
Cloud (R-TX), Ron Estes (R-KS), Ronny Jackson (R-TX), Burgess
Owens (R-UT), James Comer (R-KY), Bill Huizenga (R-MI), Steve
Scalise (R-LA), Chip Roy (R-TX), Claudia Tenney (R-NY), Anthony
D'Esposito (R-NY), Barry Loudermilk (R-GA), Andy Barr (R-KY),
Andy Harris (R-MD), Jake LaTurner (R-KS), Bryan Steil (R-WI),
and Darin LaHood (R-IL). The bill was referred to the Committee
on Oversight and Accountability. The Committee on Oversight and
Accountability held a legislative hearing on January 17, 2024.
The Committee considered H.R. 7109 at a business meeting on
April 10, 2024, and ordered the bill as amended favorably
reported by a recorded vote.
Committee Consideration
On April 10, 2024, the Committee met in open session and
ordered the bill, H.R. 7109, favorably reported with an
amendment in the nature of a substitute, by a roll call vote of
22-20, a quorum being present.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the following roll call vote
occurred during the Committee's consideration of H.R. 7109:
The roll call vote was on final passage of H.R. 7109. The
bill was agreed to in a recorded vote of 22-20.
Explanation of Amendments
During Committee consideration of the bill, Representative
James Comer (R-KY), Chairman of the Committee, offered an
amendment in the nature of a substitute that would make certain
technical changes to the bill. The amendment in the nature of a
substitute passed by voice vote.
List of Related Committee Hearings
In accordance with House rule XIII, clause 3(c)(6), (1) The
following hearing was used to develop or consider H.R. 7109:
On January 17, 2024, the Committee held a hearing titled
``The Biden Administration's Regulatory and Policymaking
Efforts to Undermine U.S. Immigration Law'' with Mr. David
Bier, Associate Director of Immigration Studies, Cato
Institute; Mr. Joseph Edlow, Former Acting Director and Chief
Counsel, U.S. Citizenship and Immigration Services, Founder,
Edlow Group LLC; and Mr. Tom Homan, Former Acting Director,
U.S. Immigration and Customs Enforcement.
(2) The following related hearing was held:
On February 7, 2023, the Committee held a hearing titled
``On The Front Lines of the Border Crisis: A Hearing with Chief
Patrol Agents'' with Ms. Gloria Chavez, Chief Patrol Agent,
U.S. Border Patrol Rio Grande Valley Sector; and Mr. John
Modlin, Chief Patrol Agent, U.S. Border Patrol Tucson Sector.
(3) The following related hearing was held:
On March 8, 2023, the Subcommittee on National Security,
the Border, and Foreign Affairs held a hearing titled ``Force
Multipliers: Examining the Need for Additional Resources to
Disrupt Transnational Crime at the Border and Beyond'' with Ms.
Diane Sabatino, Deputy Executive Assistant Commissioner, Office
of Field Operations/U.S. Customs and Border Patrol; and Mr.
Anthony Salisbury, Deputy Executive Associate Director,
Homeland Security Investigations/U.S. Immigration and Customs
Enforcement.
(4) The following related hearing was held:
On June 6, 2023, the Subcommittee on National Security, the
Border, and Foreign Affairs held a hearing titled ``Help
Wanted: Law Enforcement Staffing Challenges at the Border''
with The Honorable Joseph Cuffari, Inspector General,
Department of Homeland Security.
(5) The following related hearing was held:
On August 8, 2023, the Subcommittee on National Security,
the Border, and Foreign Affairs held a joint field hearing
titled ``Biden's Border Crisis and its Effect on American
Communities'' with Mr. Andrew ``Art'' Arthur, Resident Fellow
in Law and Policy, Center for Immigration Studies; Mr. Mark
Dannels, Sheriff, Cochise County; and Mr. John W. Ladd,
Rancher.
(6) The following related hearing was held:
On February 15, 2024, the Subcommittee on National
Security, the Border, and Foreign Affairs held a hearing titled
``The Consequences of Catch and Release at the Border'' with
Mr. Jason Houser, Former Chief of Staff, U.S. Immigration and
Customs Enforcement; Mr. Matt O'Brien, Director of
Investigations, Immigration Reform Law Institute; and Ms.
Jessica Vaughan, Director of Policy Studies, Center for
Immigration Studies.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the Background and Need for
Legislation section above.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals or objectives of this bill are to amend Title 13, U.S.
Code to add a citizenship inquiry to the decennial census and
exclude noncitizens from the apportionment base.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill does not relate to employment or access to public
services and accommodations in the legislative branch.
Duplication of Federal Programs
In accordance with clause 3(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
U.S.C.
Federal Advisory Committee Act Statement
The Committee finds that this legislation does not direct
the establishment of advisory committees within the definition
of Section 5(b) of the appendix to title 5, U.S.C.
Unfunded Mandates Reform Act Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Cost Estimate
Pursuant to clause 3(d)(1) of rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974. At the time this report was
filed, the estimate was not available.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII, the Committee
finds that H.R. 7109 would result in no new or increased budget
authority.
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, at the time this report was filed, the cost
estimate prepared by the Director of the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974 was not available.
Changes in Existing Law Made by the Bill, as Reported
The requirements of clause 3(e) of rule XIII of the Rules
of the House of Representatives apply to H.R. 7109.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 13, UNITED STATES CODE
* * * * * * *
CHAPTER 5--CENSUSES
* * * * * * *
SUBCHAPTER II--POPULATION, HOUSING, AND UNEMPLOYMENT
Sec. 141. Population and other census information
(a) The Secretary shall, in the year 1980 and every 10 years
thereafter, take a decennial census of population as of the
first day of April of such year, which date shall be known as
the ``decennial census date'', in such form and content as he
may determine, including the use of sampling procedures and
special surveys. In connection with any such census, the
Secretary is authorized to obtain such other census information
as necessary.
(b) The tabulation of total population by States under
subsection (a) of this section as required for the
apportionment of Representatives in Congress among the several
States shall be completed within 9 months after the census date
and reported by the Secretary to the President of the United
States.
(c) The officers or public bodies having initial
responsibility for the legislative apportionment or districting
of each State may, not later than 3 years before the decennial
census date, submit to the Secretary a plan identifying the
geographic areas for which specific tabulations of population
are desired. Each such plan shall be developed in accordance
with criteria established by the Secretary, which he shall
furnish to such officers or public bodies not later than April
1 of the fourth year preceding the decennial census date. Such
criteria shall include requirements which assure that such plan
shall be developed in a nonpartisan manner. Should the
Secretary find that a plan submitted by such officers or public
bodies does not meet the criteria established by him, he shall
consult to the extent necessary with such officers or public
bodies in order to achieve the alterations in such plan that he
deems necessary to bring it into accord with such criteria. Any
issues with respect to such plan remaining unresolved after
such consultation shall be resolved by the Secretary, and in
all cases he shall have final authority for determining the
geographic format of such plan. Tabulations of population for
the areas identified in any plan approved by the Secretary
shall be completed by him as expeditiously as possible after
the decennial census date and reported to the Governor of the
State involved and to the officers or public bodies having
responsibility for legislative apportionment or districting of
such State, except that such tabulations of population of each
State requesting a tabulation plan, and basic tabulations of
population of each other State, shall, in any event, be
completed, reported, and transmitted to each respective State
within one year after the decennial census date.
(d) Without regard to subsections (a), (b), and (c) of this
section, the Secretary, in the year 1985 and every 10 years
thereafter, shall conduct a mid-decade census of population in
such form and content as he may determine, including the use of
sampling procedures and special surveys, taking into account
the extent to which information to be obtained from such census
will serve in lieu of information collected annually or less
frequently in surveys or other statistical studies. The census
shall be taken as of the first day of April of each such year,
which date shall be known as the ``mid-decade census date''.
(e)(1) If--
(A) in the administration of any program established
by or under Federal law which provides benefits to
State or local governments or to other recipients,
eligibility for or the amount of such benefits would
(without regard to this paragraph) be determined by
taking into account data obtained in the most recent
decennial census, and
(B) comparable data is obtained in a mid-decade
census conducted after such decennial census,
then in the determination of such eligibility or amount of
benefits the most recent data available from either the mid-
decade or decennial census shall be used.
(2) Information obtained in any mid-decade census shall not
be used for apportionment of Representatives in Congress among
the several States, nor shall such information be used in
prescribing congressional districts.
(f) With respect to each decennial and mid-decade census
conducted under subsection (a) or (d) of this section, the
Secretary shall submit to the committees of Congress having
legislative jurisdiction over the census--
(1) not later than 3 years before the appropriate
census date, a report containing the Secretary's
determination of the subjects proposed to be included,
and the types of information to be compiled, in such
census;
(2) not later than 2 years before the appropriate
census date, a report containing the Secretary's
determination of the questions proposed to be included
in such census; and
(3) after submission of a report under paragraph (1)
or (2) of this subsection and before the appropriate
census date, if the Secretary finds new circumstances
exist which necessitate that the subjects, types of
information, or questions contained in reports so
submitted be modified, a report containing the
Secretary's determination of the subjects, types of
information, or questions as proposed to be modified.
(g)(1) In conducting the 2030 decennial census and each
decennial census thereafter, the Secretary shall include in any
questionnaire distributed or otherwise used for the purpose of
determining the total population by States a checkbox or other
similar option for the respondent to indicate, for the
respondent and for each of the members of the household of the
respondent, whether that individual is a citizen of the United
States.
(2) Not later than 120 days after completion of a decennial
census of the population under subsection (a), the Secretary
shall make publicly available the number of individuals per
State, disaggregated by citizens of the United States and
noncitizens, as tabulated in accordance with this section.
[(g)] (h) As used in this section, ``census of population''
means a census of population, housing, and matters relating to
population and housing.
* * * * * * *
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ACT OF JUNE 18, 1929
(Public Law 71-28)
AN ACT To provide for the fifteenth and subsequent decennial censuses
and to provide for apportionment of Representatives in Congress.
* * * * * * *
Sec. 22. (a) On the first day, or within one week thereafter,
of the first regular session of the Eighty-second Congress and
of each fifth Congress thereafter, the President shall transmit
to the Congress a statement showing the whole number of persons
in each State, excluding Indians not taxed and individuals who
are not citizens of the United States, as ascertained under the
seventeenth and each subsequent decennial census of the
population, and the number of Representatives to which each
State would be entitled under an apportionment of the then
existing number of Representatives by the method known as the
method of equal proportions, no State to receive less than one
Member.
(b) Each State shall be entitled, in the Eighty-third
Congress and in each Congress thereafter until the taking
effect of a reapportionment under this section or subsequent
statute, to the number of Representatives shown in the
statement required by subsection (a) of this section no State
to receive less than one Member. It shall be the duty of the
Clerk of the House of Representatives, within fifteen calendar
days after the receipt of such statement, to send to the
executive of each State a certificate of the number of
Representatives to which such State is entitled under this
section. In case of a vacancy in the office of Clerk, or of his
absence or inability to discharge this duty, then such duty
shall devolve upon the Sergeant at Arms of the House of
Representatives.
(c) Until a State is redistricted in the manner provided by
the law thereof after any apportionment, the Representatives to
which such State is entitled under such apportionment shall be
elected in the following manner: (1) If there is no change in
the number of Representatives, they shall be elected from the
districts then prescribed by the law of such State, and if any
of them are elected from the State at large they shall continue
to be so elected; (2) if there is an increase in the number of
Representatives, such additional Representatives or
Representatives shall be elected from the State at large and
the other Representatives from the districts then prescribed by
the law of such State; (3) if there is a decrease in the number
of Representatives but the number of districts in such State is
equal to such decreased number of Representatives, they shall
be elected from the districts then prescribed by the law of
such State; (4) if there is a decrease in the number of
Representatives but the number of districts in such State is
less than such number of Representatives, the number of
Representatives by which such number of districts is exceeded
shall be elected from the State at large and the other
Representatives from the districts then prescribed by the law
of such State; or (5) if there is a decrease in the number of
Representatives and the number of districts in such State
exceeds such decreased number of Representatives, they shall be
elected from the State at large.
MINORITY VIEWS
Ex-President Trump already tried to include a citizenship
question on the decennial census in 2020, and the effort failed
both administratively and legislatively--for obvious reasons.
Section 2 of the 14th Amendment states that Apportionment of
seats in the House of Representatives is based on a count of
``the whole number of persons in each State,''--persons is the
all-encompassing category larger than citizens or voters, a
point made clearly and emphatically by the Supreme Court in its
2016 decision in Evenwel v. Abbott.
Like this legislation itself, Evenwel involved a challenge
to congressional apportionment based on a total count of the
entire population instead of a total count of the voter
population. But Justice Ginsburg held for a unanimous Court
that Section 2 of the 14th Amendment ``retained total
population as the congressional apportionment base.'' She cited
the speech made by Senator Jacob Howard upon introduction of
Section 2 of the 14th Amendment:
The basis of representation is numbers . . . ; . . . . The
committee adopted numbers as the most just and satisfactory
basis, and this is the principle upon which the Constitution
itself was originally framed, that the basis of representation
should depend upon numbers; and such, I think, after all, is
the safest and most secure principle upon which the Government
can rest. Numbers, not voters; numbers, not property; this is
the theory of the Constitution.\1\
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\1\Congressional Globe, 39th Cong., 1st Sess., pp. 2766-2767 (1866)
(online at https://memory.loc.gov/cgi-bin/
ampage?collId=llcg&fileName=072/llcg072.db&recNum=848).
Justice Ginsburg cited much decisive legislative authority
like this, including the floor statement of Representative
James G. Blaine, who stated that ``no one will deny that
population is the true basis of representation; for women,
children, and other non-voting classes may have as vital an
interest in the legislation of the country as those who
actually deposit the ballot.''\2\
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\2\Evenwel v. Abbott, 578 US ___ (2016).
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The plain reading of the text is clear as day, and the
original purposes have been carefully articulated and never
rebutted. For those who like to follow precedent, every
apportionment since 1790 has included every single person
residing in the United States, not just those lucky enough to
have been given the right to vote. As the Evenwel Court noted,
the 14th Amendment contemplates that ``representatives serve
all residents, not just those eligible to vote.''\3\
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\3\Id.
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This month the Census Bureau released a report that
estimated the number of foreign-born residents in the United
States is 46 million. Fifty-three percent of those residents
are naturalized. That means this bill would leave more than 20
million U.S. residents uncounted and ignored. A population that
has a higher labor force participation rate than the native-
born population. These people are paying taxes and contributing
to the economic well-being of the nation. It is unacceptable
that these individuals should not be represented.\4\
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\4\U.S. Census Bureau, The Foreign-Born Population in the United
States: 2022 (Apr. 2024) (online at www2.census.gov/library/
publications/2024/demo/acsbr-019.pdf).
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The constitutional meaning is indisputable, a point which
settles this for those who want to follow the Constitution's
plain text and original public meaning today. This bill will
never pass the Senate or get signed by the President and is an
insult to the great Radical Republicans who wrote the 14th
Amendment. Their party was a pro-freedom, pro-Union, pro-
immigrant party.
The census is essential to democracy. Just as the Framers
endorsed Thomas Paine's Common Sense, they also endorsed a
common census. But this bill would destroy the accuracy of the
census, which may have something to do with the actual
legislative purpose. In the 2010 Census, the undercount of
Hispanics was 1.4%. In 2020 that number grew to 5%. Many
observers credit that increase to the Trump Administration's
attempt to add a citizenship question to the census and all of
the intense publicity and rumor surrounding that attempt.
The addition of a question about citizenship will deter
many immigrants--not only the undocumented but persons with
green cards or other forms of lawful status--from completing
the census. Many non-citizen immigrants who are seeking asylum
or are refugees will avoid responding because of uncertainty
over their status and fear of arbitrary law enforcement action.
Extensive research over the last decade shows that many
residents wrongly believe the Census Bureau shares personal
responses with other federal agencies. It does not, and Census
Bureau employees take an oath to protect the confidentiality of
personal information. Federal law prohibits the sharing of
personal information in this way, but that pervasive worry has
prevented some individuals from answering questions about
immigration status or responding to the census at all.
Census data guide the allocation of $2.8 trillion each year
in federal assistance to states, localities, and families for a
broad range of vital services. An inaccurate census would skew
the fair distribution of federal resources for the next decade
and deprive cities and towns of needed resources for everything
from roads to hospitals and veterans' care.
I strongly oppose this legislation, which dishonors our
Constitution and the values of our nation.
Jamie Raskin,
Ranking Member.