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Friday, September 11, 2015

Was it Constitutional for Congress to Limit the Number of Representatives to 435?

By Douglas V. Gibbs

A reader asked where in the Constitution, if it exists, is the clause that allows Congress to limit the number of members of the House of Representatives. . . a number currently set at 435.

The answer is "yes," Congress has the authority.  This question arises often because of a misunderstanding some people have regarding Article I, Section 2.  In one of the clauses in that section it states,  "The number of Representatives shall not exceed one for every thirty thousand."  Some people take that to mean "one per thirty thousand," but that is not what it says.  There can be one representative per sixty thousand, one per one hundred thousand, or one per a million.  It doesn't matter, just as long as there is not more than one per thirty thousand.  In other words, the smallest district for one person to represent is thirty thousand.  As for Congress' role in determining the enumeration, or whether or not to cap it, that appears in the Constitution just before the language about "one for every thirty thousand."  If those who question the clause were given their way, and there was one representative per thirty thousand, there would be thousands of representatives in Washington. . . not something I would relish.

Prior to that clause, the Constitution reads, "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."

The clause establishes a few things.  For one, it establishes the Census.  Note that the Census is to be taken once every ten years, and that it is only supposed to be for a head count.  In other words, today's census, when the questions asked on the form are anything beyond how many people are in the household, and if they are citizens, are unconstitutional.  It is none of the federal government's business the details about the people in a household aside from the number of whole persons (as per 14th Amendment) who are citizens.

The manner in which the census is held, and the manner in which the enumeration is to be applied, is presented right there in Article I, Section 2.  Apportionment Acts emerged immediately after the first census in 1790. The Apportionment Act of 1792 used a method recommended by Thomas Jefferson that required fractional remainders to be discarded when calculating each state's total number of U.S. Representatives.  The Apportionment Act of 1911 set the maximum limit of members of the House of Representatives at 435 (the Act I am sure encouraged the asking of the question).  

In order to take into account population shifts, yet keep the maximum at 435, Congress passed the Reapportionment Act of 1929 to take care of those shifts.  The Apportionment Act of 1941 made the apportionment process self-executing, after each census, so that Congress would not have to keep passing an apportionment act for each census.  When Alaska and Hawaii became States, the number was bumped up to 437, until after the 1960 census and the 1962 election, at which time the number went back to 435.

Note, the manner in which the enumeration is applied cannot be affected by the Executive Branch, or the Judiciary.  Only Congress, through the process of passing law, has the authority.

-- Political Pistachio Conservative News and Commentary

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