Rep. Andrew Clyde (R-GA-09) introduced the Make Apportionment Great Again Act (MAGA Act) (H.R. 10377), legislation that would add a citizenship question to the 2030 Census and exclude non-citizens from apportionment.
The bill would amend Section 141 of Title 13 United States Code to require that, “In conducting the 2030 decennial census and each decennial census thereafter, the Secretary” would need to “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) “a citizen of the United States;”
- (B) “a national of the United States but not a citizen of the United States;”
- (C) “an alien lawfully residing in the United States;” or
- (D) “an alien unlawfully residing in the United States.”
Within 120 days after a decennial headcount is completed, the Commerce Secretary would be required to “make publicly available the number of persons per State, disaggregated by each of the 4 categories” above “as tabulated in accordance with this section.”
The MAGA Act would also add an exclusion from apportionment in 2 U.S.C. 2a(a) for “individuals who are not citizens of the United States.”
The bill would further require a revised apportionment count by January 31, 2027, with the Commerce Secretary required to “to the maximum extent practicable, revise the tabulation of total population by States for the 2020 decennial census under section 141(a) of title 13, United States Code, for the purposes of the apportionment of Representatives in Congress among the several States to include only individuals who are citizens of the United States, either by excluding individuals whom official data and records indicate with reasonable certainty are not citizens of the United States or by including only individuals whom official data and records indicate with reasonable certainty are citizens of the United States” and “report such revised tabulation to total population by States to the President.” If the Commerce Secretary determines this can’t be completed in time “due to limitations on the information available,” the Secretary would need to inform Congress of “such determination and the date by which the Secretary expects to complete such revision and so submit such report” by March 31, 2027.
H.R. 10377 goes into further details on reporting the “reapportionment” count and follow-on actions by the President.
For the reapportionment, the Commerce Secretary is only supposed to use “official data and records in the possession of the Federal Government and State governments and may apply statistical estimation, matching, and imputation methods to such official data and records.” For these purposes, “official data and records” means “data and records in the possession of the Federal Government or a State government the accuracy of which has been validated by the Federal Government or a State government.” The Act includes further details on data sharing from other agencies and state governments.
H.R. 10377 sets that a “change in the number of Representatives to which a State is entitled pursuant to this section shall be presumed lawful. A court may set aside such apportionment only upon a clear and convincing showing that the Secretary of Commerce acted in excess of statutory authority or in violation of an express Constitutional limitation.”
Legal challenges to the MAGA Act would need to “be treated as an expedited matter,” with the bill going into details on the convening of a three-judge district court panel and required procedures, including that decisions from that panel would “be directly appealable to the Supreme Court of the United States in accordance with section 1253 of title 28, United States Code, which may review the case on an expedited basis.”
State court actions “relating to, or challenging the implementation, enforcement, or validity of this Act” could “be removed to the appropriate United States district court by the United States or any officer charged with implementing this Act, in accordance with sections 1441 and 1446 of title 28, United States Code.”
The MAGA Act has 42 cosponsors. It was referred to the House Judiciary Committee and House Oversight and Government Reform Committee.
