In another thread, there was some discussion of congressional reapportionment and it got me wondering.
The only rules the Constitution has are “Representatives shall be apportioned among the several States according to their respective numbers” and “The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative”.
Congress fixed the total permanent number of Representatives at 435 with Public Law 62-5 (1911) and the Reapportionment Act of 1929. (I’ll ignore the issue of temporary and/or non-voting Representatives.) The result is that a Representative used to represent around 200,000 citizens in 1912 and now represents around 600,000.
Suppose Congress decided to push things to a more extreme level. Could they enact a law setting the total number of Representatives at fifty? When this total was apportioned up, each state would obviously get one Representative in the House.
Leaving aside the issue of whether such a law would be politically possible, would it be Constitutional? The total wouldn’t be exceeding the “one for every thirty thousand” limit and each state would have a representative. But is there some other more subtle passage that requires that states with different populations have some graduation in their amount of representation in the House? That certainly was the intent of the authors of the Constitution when they accepted the Connecticut Compromise. On the other hand, when Madison was writing up the proposed amendments for the Bill of Rights, he included one that would have expanded the number of people each Representative represented as the total population grew - he did not see any need to maintain the 1790 ratio in perpetuity.
California has 68.5x the population of Wyoming but 53x the number of representatives. Clearly you know all this already.
It wouldn’t be any different with 1 representative for each state. It would still be apportioned according to population as best as can be accomplished with 50 representatives and a minimum of 1 per state.
Yes, it would be different. Saying that “it doesn’t matter how many people a state has” cannot reasonably be construed as apportioning Reps by the number of people a state has.
Now, not sure how it would fly if Congress decide to apportion the Reps this way: states with less than half the average population get 1 Rep and states with more than half get 2 Reps. But at least that can be said to have taken the population into account in some fashion.
No, it would be unconstitutional. The Supreme Court has interpreted Article 1, Section 2 to require that Representatives be apportioned to achieve population equality “as nearly as is practicable.” One Rep in every state would fail that standard.
I don’t see my theoretical plan as violating the letter of the law. If you’ve got fifty Representatives being divided into fifty states, then apportioning them out one per state is as equal as possible in that situation.
I guess the basic issue is the system wasn’t set up for equality. The intent was that the states would receive unequal representation based on the fact that they have unequal populations. But while that was clearly the intent, I don’t know if it was ever explicitly stated as such in the text. And I don’t think anyone has defined what minimal amount of unequality is acceptable.
As cmosdes pointed out, California has sixty-eight times the population of Wyoming but only gets fifty-three times the representation. So the ratios don’t have to be equal. If we accept John Mace’s reasoning, a system would be acceptable as long as there is some degree of difference. So would a system of fifty-one Representatives work? California would get two Representatives and every other state would get one. Apportionment would have been achieved, albeit the minimum possible amount.
On a less extreme version, suppose Congress decided the two halves of Congress should be equal in size. The Senate would have a hundred members with each state having an equal amount and the House would have a hundred members with each state having an amount proportional to its population, with a minimum of one. If my quick calculations are correct, California would get seven Representatives to Wyoming’s one under such a system. Would this be Constitutional?
That’s the Senate (divided in half). We have one of those. The House by design is supposed to weighted in favor of the larger states. Your plan doesn’t do that, and it appears to me to be against the letter and spirit of the Constitution as written and interpreted over the years.
But one per state would not constitute apportionment by population. There’s no question that was the original intent.
So even before a census had been conducted, they were using their best guess to try and allocate representatives among the states as equally as possible.
Apporionment of Representatrives according to population has always been mandatory.
From the Article I Section 2 paragraph 3 of the original Constitution:
Representatives and direct Taxes shall be apportioned among theseveral 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.
From the 14th Amendment Section 2, 1st sentence:
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.
Little Nemo is technically correct, though. Given a total body of fifty reps for fifty states, and the explicit requirement that every state have at least one, one per is the best apportionment possible.
The “intent” problem with this scheme is not the disparity in population-per-seat, as such, but simply the small body size relative to the number of states.
In what way is it the “best”, especially with the additional requirement to apportion by “Number”? Would it be “best” to say that each state had to pay the same amount of taxes?
Well, it is “best” in the sense that it would be the only possible, under the terms given.
Given that they didn’t want to simply specify a fixed size for the body, it would have made sense to include a clause that said “the total number of Representatives apportioned shall in no event be fewer than five times the number of States,” or something. But they didn’t.
Given the initial distribution, it would be pretty much inconceivable that any succeeding Congress would ever actually vote in such a tightening. Nemo’s question is one of academic amusement.
Not according to the Supreme Court’s interpretation. Perfect mathematical precision is not required, but one rep per state makes absolutely no accounting for population. A world where California has the same number of reps as Rhode Island is a world where California’s level of representation is grossly unequal, and it’s violative of the original intent of Article 1, Section 2.
We currently have 435 Reps because Congress passed a law locking in that number. The Supreme Court hasn’t found that to be unconstitutional. If Congress passed a one rep per state law, I’m saying the Court would find that unconstitutional based on a plain reading of Article 1 and precedent.
Oh, I missed the part about the 50 Rep requirement. But that’s a totally made up “requirement” and, as noted, would almost certainly be ruled unconstitutional. So it fails as being the best since it’s an unrealistic hypothetical.
What case are you referring to? The “as nearly as practicable” standard refers to apportionment of representation within a state - the requirement that voting districts be of the same approximate population size.
It’s not at all clear that federal courts would intervene if Congress decided each state was entitled to 1 representative per 500,000,000 residents, or whatever. Though this is clearly contrary to the framers’ intent, it’s not contrary to the letter of the law.
Moreover, Congress is expressly empowered by the Constitution to choose the methods of apportionment. Courts generally refrain from telling Congress or the executive what to do in areas where they are expressly in charge.
I tend to side with LIttle Nemo here. The Supreme Court has historically been reluctant to assert jurisdiction over how Congress structures itself. Corect me if I’m wrong, but I think all of the Court’s reapportionment jurisprudence has involved oversight of conduct by the states, and it has never resulted in an order being issued to Congress. If even the Warren Court was unwilling to order the House to expand its membership in the interest of greater equality of consituencies, I think it’s a high hill to climb.
“Apportioned by population” has always been taken to mean “apportionment of whatever number of Reps has been set by Congress.” As far as I know, no one’s ever tried to use that clause to force the House to expand, despite the population inequities that exist even with 435 members. The OP is presenting an extreme case, which admittedly makes the decision tougher, but as he points out, his distribution is technically compliant. Others here are right that it does not seem to satisfy the intent of the Constitutional provision, but striking it down poses its own challenges. If 50 doesn’t satisfy the framers’ intent, what number does? How can 435 be justified, vs. something an order of magnitude larger?
(A) “Apportioned according to their respective numbers” is as explicit as
(B) “but each state shall have at least one representative.”
(A) occurs first and introduces the basic guiding principle; it is the intent.
My guess is that (B) was included to make explicit the right of each state
to have a Representative no matter how great future population disparities
might become, thus providing for exception to general rule stipulated by (A),
but not providing for abolition of (A).