In case you are wondering, yes, I am mimicking the style of those cheesy ‘adformation’ articles where the headline says someone discovered ‘one weird trick’ to lose weight or get money or whatever, which are really trying to sell you something that is sketchy as frak. But unlike those adformation articles, I am going to give you a proposal that would actually work and actually makes sense under the Constitution as interpreted by the Supreme Court.
(And you will see, those last six words are doing a lot of work, here.)
I think we can understand Trump’s first year back in office as in part doing a Sherman’s March through the Democrats’ power centers. He is destroying the money train that was USAID. He is destroying their taxpayer-funded propaganda outlets in NPR and PBS. And while illegal immigration is a problem on multiple levels, it is also in part a problem in terms of distorting our politics and Trump is working to destroy that too. As I have frequently joked, we haven’t seen Democrats so angry since we took away their slaves.
I think Representative Chuck Edwards of North Carolina actually sums up the problem of illegal immigrant power pretty intelligently, here, even if I see a legal problem in his solution:
I’m not sure if this was ever put into law it’s from 2024 but a great explanation of how illegal aliens are impacting House of Representatives passes Edwards’ bill to only include U.S. citizens in congressional representation | Congressman Chuck Edwards https://t.co/5fAffgJ9BM
— USA 🇺🇸 (@DonaldTrumpPrt) June 29, 2025
Speaking during the Autopen Administration Biden Administration about a bill he proposed, Edwards said:
‘One of the lesser acknowledged, but equally alarming, side effects of this administration’s failure to secure the southern border is the illegal immigrant population’s influence in America’s electoral process.
‘Our democracy depends on accurate representation and electoral integrity. Voting is a coveted privilege held by American citizens, and elected representatives are responsible for serving the interests of the voters in their district.
‘But even if not a single illegal alien casts a vote, the mere presence of illegal immigrants in the U.S. is having a profound impact on the outcome of elections, skewing the representation of Americans….’
What he is talking about is apportionment, meaning how many representatives each state gets. Article I, Section 2 of the original Constitution says the following:
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. 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.
This was later altered by the Section 2 of Fourteenth Amendment:
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.
Besides cutting out the 3/5 clause, it stated that all persons would be counted as whole people, free or not, and excluded the language about indentured servitude.
Edwards goes on to argue that apportionment does not have to include illegal immigrants and he proposed a law to state that explicitly. And more recently, in the Trump administration, they have proposed a new census which would only count people who are legally in America.
HUGE
— DC_Draino (@DC_Draino) August 7, 2025
Trump tells the Dept of Commerce to redo the Census and remove illegal aliens from it
Huge huge huge pic.twitter.com/Ui6dy6tM8J
But, I don’t think this will work.
Look, sometimes as a lawyer I have to tell people what they don’t want to hear. I have to tell them that the law doesn’t say what they want it to. Sometimes I have to tell them that the law is bad and sets up bad incentives. This is one of those times.
When you look at the Constitution, it says you’re supposed to count every person, excluding ‘Indians not taxed.’ Whenever the Constitution talks about a person, that means everyone, citizen or not, legal or illegal. So, for instance, the Supreme Court has regularly ruled that illegal immigrants do have due process rights because the Fifth Amendment and Section 1 of the Fourteenth Amendment talks about ‘persons.’
(So Democrats are right to say even illegal immigrants are entitled to due process. Where they go wrong is that they ignore the word ‘due.’ It is not a right to endless process, only the amount of process that is due, which can vary wildly by the circumstances.)
Yes, this means that because we have to count illegal immigrants in apportionment, the Constitution creates the worst possible incentives. And, yes, what Democrats have done with illegal immigrants very much mimics the injustice of what the 3/5 clause did for apportionment. Putting aside the inherent injustice of slavery—which I admit is a huge thing to put aside—the most just answer would be to count slaves as 0/5 of a person for apportionment purposes. It is common for modern leftists to complain that this was some kind of insult to the dignity of slaves …
…(and they often conflate the term ‘slaves’ with ‘black people,’ ignorant of the fact that we have always had free black citizens in this country)…
…but the true outrage of the 3/5 clause, at least on the topic of apportionment, was that the slaves were being counted to distribute political power at all. Slaves could not vote, so the net effect of counting slaves in apportionment was to give their masters increased political power. A plantation having 188 slaves and twelve free people living in the master’s mansion had the same political power as 200 free people living up North. So, the bodies of the slaves would be used to increase the power of the people who are literally keeping them in chains, without giving the slaves themselves political power. By no stretch of logic is that fair. It added further injury to the many injuries of slavery.
(And even if they gave slaves the right to vote, those slaves would not be able to vote freely, because they were slaves. Indeed, we didn’t even have anonymous voting back then, so if a slave dared to vote in a way that displeased his or her master, they could expect retribution. Anonymous voting didn’t become common in America until after the Civil War.)
So, if they weren’t going to end slavery right at the beginning of our republic (and in an ideal world, they would have), the fairest thing in terms of representation would be not to count slaves for apportionment at all.
But, back to the current problem of political power, it is absolutely correct to say Democrats are repeating that ugly history of the 3/5 clause. It’s almost as if there wasn’t a party switch after all.
Still, for now the only way to prevent illegal immigrants from being counted in the census and therefore inflating Democrat power in the House of Representatives is to throw them out or otherwise to get them to leave on their own. The Constitution is unfortunately clear on this topic: All persons present in the United States have to be counted in apportionment.
So yes, sometimes as a lawyer, I have to tell people what they don’t want to hear, particularly clients. But a good and clever lawyer also tries to think of other ways to accomplish the client’s goals within the law. And if the Trump administration was my client, I would tell it that I think I have a way to blunt the impact of that part of the Constitution in the short term. And that is where what I half-jokingly call a ‘weird trick’ comes in.
But I have to talk a little more about the law for you to understand how my proposal works. Indeed, if you understand the law, you might even guess what I am about to propose.
It all goes back to Baker v. Carr, 369 U.S. 186 (1962), which ushered in our current era of legal fights over redistricting maps. In that case, the plaintiffs were complaining that the population between districts was greatly distorted, inflating the power of voters in one district at the expense of another. As Justice Douglas wrote in a concurrence:
We are told that a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County.
To illustrate what he is saying, imagine if district X had 10,000 people in it, and district Y had 100,000 people in it. Both districts would have the same number of representatives in Congress, but people in the district X would have ten times the voting power as the people in district Y. That also means that the representative of the X district would have an incentive to try harder to keep each citizen happy—if you have less constituents to please, you’re going to work harder to keep each of them happy.
Now, Baker didn’t actually decide whether or not the situation in Tennessee was unconstitutional or not. All they decided in Baker was that they could decide it, that if the facts were as the plaintiffs alleged that it potentially violated the Constitution. Previously people brought similar claims under what is called the guarantee clause. That clause is found in Article IV, Section 4 of the original Constitution and it says:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
(Emphasis added.) Before Baker, litigants claimed that such uneven apportionment violated this guarantee clause but the Supreme Court refused to even consider the issue, calling it a ‘non-justiciable political question.’ I have talked about this doctrine before in a different context, but the gist of it is that the Supreme Court is saying that it is not the federal courts’ job to decide when a state is no longer ‘republican’—in the sense of the form of government, not the party.
But Baker came out differently because they relied on a different part of the Constitution: The Equal Protection Clause of the Fourteenth Amendment. That clause says:
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
This has long been interpreted to mean essentially don’t discriminate against people. Indeed, as this truly remarkable young scholar pointed out years ago…
Working on a VIP piece for @TwitchyTeam and I found a good piece by an obscure but promising, brilliant, handsome and humble young scholar that you might enjoy reading, if you can access it through this website or others: https://t.co/3fwhAYochh
— (((Aaron Walker))) (@AaronWorthing) August 17, 2025
…the first draft of the Equal Protection Clause was written by Representative Thaddeus Steves, called by one of his biographers the Father of the Fourteenth Amendment. He was also the most powerful politician in America during the presidency of Andrew Johnson after Lincoln died. And when Stevens introduced his draft of the Equal Protection Clause he said it was his dream that
‘no distinction would be tolerated in this purified Republic but what arose from merit and conduct.’
‘No distinction’ meaning no discrimination (unless it is based on merit and conduct). I have long said that Stevens’ sentiment is very similar to Rev. Martin Luther King, Jr.’s statement that
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.
After all, if you look in the dictionary, ‘character’ can be defined as pretty much merit and conduct. Yet King’s statement is narrower because he is only talking about racial discrimination. Stevens was not. Racial discrimination was only one kind of discrimination he was targeting.
In any case, in Baker the Supreme Court held that such unequal distribution of voting could violate the Equal Protection Clause and from then on, the Supreme Court and lower courts regularly got involved in drawing congressional maps.
All of which is legally bullcrap. I won’t get into the full complexity of why the Fourteenth Amendment’s Equal Protection Clause does not apply to voting and elections, but I will simply note that if the this clause was designed to apply to voting and elections, then why did we need a Fifteenth Amendment? Indeed, arguably that interpretation would also make the Nineteenth Amendment redundant.
But whether that is a correct originalist interpretation of the Fourteenth Amendment or not, it is what the Supreme Court has ruled for more than half a century and the prevailing wisdom is that we have to live with it until and unless the Supreme Court overturns itself or an amendment is passed. And fat chance of either one of those things happening anytime soon.
Therefore, since Baker, the Supreme Court has said that states need to roughly follow the principle of ‘one person, one vote.’ The Supreme Court has also said that it doesn’t have to be exact, because districts can be drawn to keep it geographically contiguous and to consider other factors besides equality, but it should be roughly one person, one vote.
So … do you see where I am going with this? Do you think you can guess the ‘weird trick’ I am about to propose?
If the Supreme Court is going to try to ensure that political power can be distributed equally in apportionment, they have to look at all the ways that political power can be distributed unfairly. Unequally. And one way you could unfairly increase the political power of citizens of one district versus another is by increasing the number of people ineligible to vote in a district. There are a number of reasons why a person might be living in America and still can’t legally vote in federal elections. Citizens can and are denied the right to vote due to age or status as a prisoner or an ex-con. And immigrants can’t vote whether they are here legally or not. If there are other categories of people currently in America who are not allowed to vote, it doesn’t occur to me now. But obviously letting illegal immigrants into this country and then counting it in apportionment can be used to unfairly increase the political power of people in one district versus another.
Again, to illustrate by example, imagine if districts A and B has exactly 100,000 people in it, but district A has 10,000 eligible voters and 90,000 people who are not allowed to vote, and district B has 100,000 eligible voters. Then the voters in district A would have ten times the political power as in B, just like the with the X versus Y districts I mentioned a minute ago.
As I said, Baker was wrongly decided. That doesn’t mean that I think the policy of that decision—one person, one vote—is bad. I just don’t think it is written in the Constitution. But if the courts are really going to pretend that the principle of ‘one person, one vote’ is somewhere in the Constitution then they have to consider the ratio between people eligible to vote and people who are not eligible when drawing district lines.
But to my knowledge, the courts haven’t considered this, yet. I have never seen a single federal case where the courts required states to evenly distribute people ineligible to vote between districts—although it is possible that I missed it.
And Trump could change that practically overnight. He could issue an order—maybe a formal executive order, maybe not—directing every person working for the Federal Government, particularly any lawyers involved in any redistricting cases, to push this theory of law. That order can include a promise of discipline up to and including termination if they do not strenuously advocate for it. (That gives Trump another way to weed out any unlawful resistance in his administration.) And if that principle is followed in the courts—and I think the current Supreme Court in particular would be very receptive to this approach—then states would be required to ensure that each district had a roughly equal number of people ineligible to vote and a major incentive to import new persons to distort our politics goes instantly by the wayside: Democrats in the House will no longer benefit from their open border policies.
Of course, that doesn’t solve the whole problem. Unfortunately, illegal immigration also inflates the political power of states as a whole by increasing their population. That means they still have more representatives in Congress. And that in turn increases their power in the Electoral College which chooses the President. Article II, Section 1 of the Constitution tells us how each state’s electors are calculated:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Thus, those problems won’t be solved by my proposal.
But half a loaf is better than no loaf at all, and if we can even partially break this artificial power Democrats have in Congress, that might lead to bigger and better things such as a constitutional amendment that at least excludes illegal immigrants from apportionment.
In any case, that is my proposal, but we have pretty awesome commenters here, so I want to hear what you think. Is my idea a good one, or a bad one?
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