By: Anoo Dinesh Vyas*
Abstract
Expanding the House of Representatives could offer several benefits, as noted by various public policy experts. It could make gerrymandering more difficult and mitigate the impact of money in our political system. Additionally, it could lessen political polarization, which some scholars argue has reached levels that threaten the long-term viability of our democracy. In fact, increasing the size of the House theoretically could impact all potential legislation at the federal level.
Congress fixed the House at 435 members nearly a century ago when it passed the Permanent Apportionment Act of 1929. Though the population of the country subsequently has increased by more than 200 million, the number of House delegates remains at 435. This Article argues that the Permanent Apportionment Act is unconstitutional because it eliminates Congress’ responsibility to assess the size of the House every ten years. This review of House size in connection with the census was a significant tool used by proponents of the Constitution during the ratification period to convince skeptics who feared the House may one day transform into an oligarchical body.
The Permanent Apportionment Act violates various modes of originalism and textualism, as favored by more conservative jurists. Moreover, it runs afoul of living constitutionalism, espoused by more liberal judges. Finally, a formula, such as one that automatically adjusts House size to the cube root of the population, could avoid contentious fights while simultaneously passing constitutional muster.
* Assistant Professor of Law, University of Massachusetts School of Law. The author would like to thank Rebecca Valentine for her exemplary research assistance on this project, as well as the wonderful team at Penn State Law Review for their insightful comments and extraordinary hard work. Heartfelt thanks to Prof. Evan Zoldan, Prof. Margaret Drew, Prof. Gary Spring, Prof. Eric Mitnick, Prof. Dustin Marlan, Benjamin Anchill, Justin Pascoe, Seth Wilschutz, and Sarah Drummond for providing invaluable feedback on earlier drafts. Also thank you to Prof. Ryan Vacca and Prof. Michael Gentithes. Additionally, thank you to so many of my wonderful colleagues at UMass Law who provided support, particularly Prof. Spencer Clough, Prof. Dwight Duncan, Prof. Justine Dunlap, Prof. Hillary Farber, Prof. Lisa Lucile Owens, and Prof. Richard Peltz-Steele. Additionally, thank you to Steven C. Weit for making me aware of the issue in the first place. I encourage you to continue to bring up obscure legislation, as well as bizarre constitutional hypotheticals, at future family gatherings. You are now two for two in giving me law review ideas. Thank you to Aaron Sorkin for giving me countless episodes of The West Wing which served as beautiful background music and inspiration to which to write. Thank you to B.A. Stanford. Thank you to Prof. Margaret Drew and Prof. Gary Spring for their guidance and mentorship not just on this Article, but in the enterprise of life. Thank you to my parents, Dinesh and Usha Vyas, and sister, Sonal Vyas Weit, for so much, including a formative decade of lively political discourse at the dinner table. Kai, Shantha, and A.J. – this is for you. I love each of you very much.