House subcommittee splits over whether noncitizens should factor into congressional apportionment

WASHINGTON — Republican members of a House Judiciary subcommittee opened a Wednesday hearing pressing for changes to how the United States counts its population for apportionment, while Democratic members and civil‑rights witnesses warned that excluding noncitizens or adding a citizenship question would harm accuracy and public trust.

Chairman Roy opened the session saying the 2020 census "failed," calling it a "sanctuary census" because, he said, it counted noncitizens for apportionment. "Congress must act to ensure that, at the very least, that illegal aliens are not counted for the purposes of apportionment," he said.

Ranking Member Scanlon and other Democrats countered that the Constitution and Supreme Court precedent support counting the "whole number of persons" for apportionment and cautioned that attempts to exclude noncitizens have legal and practical risks. "The census is fundamental to our democracy," Scanlon said, urging that the Bureau be protected from partisan interference and properly funded to reach hard‑to‑count groups.

Expert witnesses presented competing legal views. Trey Mayfield, who served as counsel to a former Census Bureau director, argued that the text and history of the Constitution require an "actual enumeration" and that Congress has historically prohibited statistical adjustments for apportionment. "Congress must mandate that the enumeration reflect the constitutional text," Mayfield said, and he criticized the Bureau's use of differential privacy at granular levels.

J. Rodriguez, an assistant attorney general from Kansas who leads multi‑state litigation, described the question of whether noncitizens should count as "an open question" for courts and Congress, noting that prior cases (including Department of Commerce v. New York and Trump v. New York) addressed related procedural and standing issues but did not settle the precise constitutional boundary.

Committee members debated the practical consequences of different approaches. Several Republicans argued that counting noncitizens shifts seats and federal resources to states with larger noncitizen populations; some witnesses said model estimates of miscounts cost Republicans seats. Democrats warned that excluding portions of the population or adding a citizenship question would suppress responses from mixed‑status and immigrant households and would particularly hurt young children and historically undercounted racial and ethnic groups.

Both sides called for additional oversight and possible legislative action. Some members urged Congress to clarify apportionment law, while others emphasized increased funding, targeted outreach and improved methodology to reduce undercounts ahead of the 2030 Census.

The subcommittee concluded without a vote; members sought unanimous consent to insert a Government Accountability Office report on 2020 coverage errors into the record and will have five legislative days to submit further questions and materials.