Anger among conservatives over President Obama’s decision to grant amnesty to four or five million illegal immigrants has focused not only on the substance of the decision but also on the constitutionality of his exercise of executive power. And while that debate is important, the separation of powers is not the only significant constitutional matter at stake. In contention as well are the contours of representative government itself.
Knitted to the issue is the question of the apportionment of the 435 seats in the House of Representatives and the distribution of Electoral College votes among the states, which are tied to the census count conducted every 10 years. Under current directives, that count tallies up not only citizens and legal resident aliens, but also those here illegally. The latters’ inclusion appears to be mandated by the language of the 14th Amendment which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state.”
This reading of the 14th Amendment creates a set of incentives for states to tolerate, if not actually invite, more illegal immigration within their boundaries. Reapportionment is a zero-sum game. With the total number of House members set by law at 435, states stand to lose a representative (or two) as other states win additional members. More bodies equals more representatives, and more votes when it comes to selecting a president.
Since the 1980 census, the government’s official tally of population—through the use of the “short form”—has stopped including data as to whether those being tallied are citizens, legal, or illegal immigrants. However, the Census Bureau continued to try and estimate the numbers in these various categories. In 1985, for example, director of the Bureau of the Census John Keane testified before a Senate subcommittee that, based on bureau estimates, California and New York had each gained a congressman (while Georgia and Indiana each lost one), thanks to the number of illegal aliens in those states.
Because of the likely sensitivity of the issue, the Census Bureau did not calculate similar figures after the 1990 reapportionment, but an estimate of the impact of immigration by Texas A&M demographer Dudley Poston Jr. and colleagues found that California gained two congressmen, Texas one, while Kentucky, Massachusetts, and New Jersey each lost one. And, while certainly not the only reason for a “plus-up,” it’s no coincidence that immigrant-heavy Texas, Arizona, Nevada, and Florida ended up with additional representation in Congress after the 2010 census. And, of course, hundreds of billions of dollars in federal largesse are tied in part to population counts—only sweetening the pot a state stands to collect by pumping up its numbers.
Given voting patterns among Hispanics, the president and his party have further partisan reasons to welcome illegal aliens. According to a March 2013 Department of Homeland Security report, 73 percent of the unauthorized population in 2012 congregated in the 10 states of California, Texas, Florida, New York, Illinois, New Jersey, Georgia, North Carolina, Arizona, and Washington. And while we would like to think noncitizens are not allowed to vote, research done by Jesse Richman and David Earnest has shown that more than 14 percent of noncitizens sampled in 2008 and 2010 indicated not only that they were registered to vote, but also that in some close elections, those votes likely made a difference in determining the winner.
This is not to mention how President Obama’s recent decision only increases the likelihood that those contemplating jumping America’s borders will now do so, with the expectation that, once over, they will eventually be amnestied. As even the New York Times noted, when “Congress granted amnesty to an estimated three million illegal immigrants as part of a  law that also promised to crack down on further illegal immigration by imposing sanctions on employers who knowingly violated the law,” the result was that by 2000, there were “twice as many illegal workers.” Legalized immigrants were attractive anchors for relatives who joined them in the United States without fear of any tangible legal repercussions.