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Legal Opinion · 2026-10-29

The size of the House of Representatives

A formal brief of the constitutional text, the statutes and the case law on how large the House may be, who may change it, and how a House of 11,036 could work. It starts from the paper that began this project, notes where that paper needs correcting, and adds the law since.

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Contents

Pro bono legal opinion of John N. Phillips, Esq., B.S., J.D. (WSBA No. 54962), for Open The House. 29 October 2026. Prepared for public discussion of the constitutional and statutory law governing the size of the House and the means of enlarging it. It is not legal advice, it creates no attorney-client relationship, and it states the law as of its date. Drafted with AI assistance.

Questions presented

  1. Does the Constitution require a House of one Representative for every 30,000 persons, or does it permit Congress to fix the House at 435?
  2. Can a federal court order Congress to enlarge the House?
  3. May Congress enlarge the House by statute, and how far?
  4. Could a House of more than 11,000 Members meet, deliberate and vote within the Constitution, including remotely and with software that counts and records its votes?
  5. What does the founding paper, John N. Phillips, A Blockchain Greenfield for Cato: Democratic Representation by a Trust-less, Self-disclosing Market (2017), get right, and where does it need correction?

Short answers

  1. It permits 435. Article I sets a ceiling and a floor, not a ratio Congress must meet: "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." U.S. Const. art. I, § 2, cl. 3. Every court to reach the merits has held that Congress may fix the House below the ceiling. The constitutional case for a larger House is a case from the Constitution's design and purpose, addressed to Congress and the people. It is not, under existing precedent, a claim that the 435 cap is unconstitutional.
  2. Almost certainly not. The Supreme Court vacated the only merits ruling, with instructions to dismiss for lack of jurisdiction. Clemons v. U.S. Dep't of Com., 562 U.S. 1105 (2010). In 2024 the Ninth Circuit held that Clemons binds the lower courts and affirmed the dismissal of a challenge to the cap brought by a Washington attorney. Schroeder v. United States, No. 23-35606 (9th Cir. May 9, 2024) (mem.), cert. denied, No. 23-1331 (U.S. Oct. 7, 2024).
  3. Yes, up to the ceiling. Congress fixed the number by ordinary statute after every census from 1790 through 1910, and it can amend 2 U.S.C. § 2a(a) again. By the 2020 Census apportionment population of 331,108,434, the ceiling is 11,036 Members. Read state by state, as President Washington read it in the first veto, it is no fewer than 10,987 and no more than 11,036. No constitutional amendment is needed.
  4. Very likely, with one open question. Each House "may determine the Rules of its Proceedings," U.S. Const. art. I, § 5, cl. 2, and software may count and record what Members decide. Whether a quorum requires Members' physical presence is now before the en banc Fifth Circuit. Texas v. Bondi, No. 24-10386. Software cannot itself exercise legislative power, and a bill the House passes must still pass the Senate and be presented to the President.
  5. The historical core holds. The paper's account of the Convention, The Federalist, the Anti-Federalists and the history of § 2a is sound and well sourced. Part VI lists the corrections it needs: it calls the cap unconstitutional, attributes a remark to Washington that was Nathaniel Gorham's, misstates the Congressional Apportionment Amendment, and omits Montana and Wesberry. It predates the case law in Part VII.

I. The constitutional text and its purpose

A. The text

Article I, Section 2, Clause 3 provides that "Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers," that "[t]he Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative," and, until the first census, fixed a House of 65. Section 2 of the Fourteenth Amendment restated the rule of apportionment: "counting the whole number of persons in each State, excluding Indians not taxed." The count is of persons, not citizens. See Evenwel v. Abbott, 578 U.S. 54 (2016); Franklin v. Massachusetts, 505 U.S. 788 (1992).

The clause does three things. It ties the House to the people rather than to the states, as the Senate is tied to the states. It guarantees each state at least one seat. And it caps the House's size relative to population, while leaving the actual number to Congress.

B. The Convention

The framers argued over the size of the House more than over almost any other feature of it. The draft reported in September set the ceiling at one Representative for every 40,000. On the Convention's last day, 17 September 1787, Nathaniel Gorham moved to reconsider it, "for the purpose of lessening objections to the Constitution," and to "strike out 40,000 & insert 'thirty thousand.'" The change, he said, "would not . . . establish that as an absolute rule, but only give Congress a greater latitude which could not be thought unreasonable." Rufus King and Daniel Carroll seconded. George Washington, presiding, had until then kept his views on the questions before the Convention to himself. He rose to support the motion: the small number of Representatives "had always appeared to himself among the exceptionable parts of the plan." "No opposition was made to the proposition of Mr. Gorham and it was agreed to unanimously." James Madison, Notes of Debates in the Federal Convention (Sept. 17, 1787).

The record makes two points. The framers meant the House to be large, and to grow with the people. And they wrote 30,000 as a limit on Congress, not a command to it: Gorham said so in moving it.

C. Ratification

Critics of the Constitution pressed the point. Brutus wrote that "for an assembly to be a true likeness of the people of any country, they must be considerably numerous," and that one man or a few men "cannot possibly represent the feelings, opinions, and characters of a great multitude." Brutus No. III. Madison answered in The Federalist. He defended the House's initial size, The Federalist No. 55, and warned against both extremes: "however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and . . . however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude." The Federalist No. 10 (Madison); see also id. No. 58.

D. The Congressional Apportionment Amendment

The First Congress answered the critics with the first of the twelve amendments it proposed on 25 September 1789, "Article the First." It would have required one Representative for every 30,000 until the House reached 100, then no fewer than 100 Representatives and no fewer than one for every 40,000 until it reached 200, and then "not less than two hundred Representatives, nor more than one Representative for every fifty thousand persons." The final clause is defective: read literally, it sets a ceiling of one per 50,000 against a floor of 200, which cannot both be met at some populations. Eleven states ratified it, the last being Kentucky in 1792. Congress set no deadline, and the amendment remains pending before the states.

The Twenty-seventh Amendment, proposed alongside it in 1789, was ratified in 1992. Whether an amendment has been ratified within a reasonable time is a question for Congress, not the courts. Coleman v. Miller, 307 U.S. 433 (1939); see Dillon v. Gloss, 256 U.S. 368 (1921). Claims that Article the First was in fact ratified in 1792 have been dismissed. LaVergne v. Bryson, 497 F. App'x 219 (3d Cir. 2012) (per curiam); LaVergne v. U.S. House of Representatives, No. 1:17-cv-00793 (D.D.C. 2018).

E. The first veto

The ceiling was first enforced by a President. Congress's first apportionment bill after the 1790 census gave eight states more than one Representative for every 30,000 persons, and used no single ratio for all states. President Washington returned it on 5 April 1792, the first veto, objecting on both grounds. Congress did not override. It passed a new bill at one Representative for every 33,000 persons in each state, which Washington signed on 14 April 1792. Act of Apr. 14, 1792, ch. 23, 1 Stat. 253; see The 1790 Census and the First Veto (National Archives). The episode shows that the ceiling was read state by state: no state may have more than one Representative for every 30,000 of its people.

II. The statute: how the House came to 435

For the first 120 years, Congress fixed the House's size by statute after each census, and the House grew with the country, shrinking only once, in 1842. The Apportionment Act of 1911 set it at 433, with a seat each to come for Arizona and New Mexico on admission, making 435. Act of Aug. 8, 1911, ch. 5, 37 Stat. 13. After the 1920 Census, for the only time, Congress failed to reapportion at all.

The Reapportionment Act of 1929 ended the decennial decision. It provided for an automatic apportionment, after each census, of "the then existing number of Representatives." Act of June 18, 1929, ch. 28, § 22, 46 Stat. 21, 26. A 1941 amendment adopted the method of equal proportions and gave the provision its current form. Act of Nov. 15, 1941, ch. 470, 55 Stat. 761 (codified at 2 U.S.C. § 2a). The House rose to 437 when Alaska and Hawaii were admitted in 1959 and returned to 435 with the apportionment after the 1960 Census.

Today, within a week of the opening of the first regular session of each Congress after a census, the President transmits each state's population and its number of Representatives under equal proportions, 2 U.S.C. § 2a(a), using the tabulation the Secretary of Commerce must deliver within nine months of census day, 13 U.S.C. § 141(b). Each state elects its Representatives from single-member districts. 2 U.S.C. § 2c; see Branch v. Smith, 538 U.S. 254 (2003).

The cap is in the phrase "the then existing number of Representatives." Nothing in the Constitution fixes 435.

By the 2020 Census, each Member represents 761,169 people on average (331,108,434 ÷ 435). The average district ranges from 542,704 in Montana to 990,837 in Delaware. U.S. Census Bureau, Congressional Apportionment: 2020 Census Brief. In 1793, each Member represented 33,000.

III. The courts

A. The merits: Congress may fix the House below the ceiling

The first constitutional challenge to § 2a held that "the historical background and the plain meaning of the Constitution support the power of Congress to fix the number of representatives at a figure less than the maximum of one for every 30,000 inhabitants." Whelan v. Cuomo, 415 F. Supp. 251, 258 (E.D.N.Y. 1976). An equal-protection challenge to the disparities the cap produces among states failed on the same reasoning. Wendelken v. Bureau of the Census, 582 F. Supp. 342 (S.D.N.Y. 1983), aff'd, 742 F.2d 1437 (2d Cir. 1984).

The Supreme Court's controlling decision on apportionment among the states is U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992). A unanimous Court held that the method of apportionment is subject to judicial review, but upheld the method of equal proportions and held that Congress has wide latitude in apportioning seats among states. The demanding standard that governs districts within a state, a good-faith effort to achieve population equality as nearly as is practicable, does not govern apportionment among the states, where state lines and the guarantee of at least one seat make equality impossible. Compare Wesberry v. Sanders, 376 U.S. 1 (1964), Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and Karcher v. Daggett, 462 U.S. 725 (1983) (districts within a state), with Montana, 503 U.S. 442 (among states).

A three-judge court in Clemons v. U.S. Department of Commerce, 710 F. Supp. 2d 570 (N.D. Miss. 2010), held that a challenge to the cap was justiciable, reviewed the Convention and the Court's cases at length, and rejected the challenge on the merits.

B. Jurisdiction: the courts will not reach the question

On appeal in Clemons, the Supreme Court vacated the judgment and remanded "with instructions to dismiss the complaint for lack of jurisdiction," without opinion. 562 U.S. 1105 (2010). A summary disposition binds the lower courts. Hicks v. Miranda, 422 U.S. 332, 344–45 (1975).

In Schroeder v. United States, No. 23-35606 (9th Cir. May 9, 2024) (mem.), a Washington attorney challenged § 2a under Article I, Section 2, Article II, Section 1 and the one-person, one-vote principle. The Ninth Circuit affirmed the dismissal for lack of subject-matter jurisdiction: "The Supreme Court has suggested that federal courts lack jurisdiction over challenges to the size of the House," and "Clemons controls this case." The Supreme Court denied certiorari. No. 23-1331 (U.S. Oct. 7, 2024). Although the memorandum is unpublished, it reflects how the federal courts in Washington and the rest of the Ninth Circuit will treat such a claim.

The courts' reluctance fits the political-question doctrine, which withholds from judicial resolution questions textually committed to another branch or lacking judicially manageable standards. Baker v. Carr, 369 U.S. 186 (1962); Nixon v. United States, 506 U.S. 224 (1993); see Rucho v. Common Cause, 588 U.S. 684 (2019) (partisan gerrymandering claims are not justiciable in federal court). Choosing the House's size within the ceiling is the kind of judgment the Constitution leaves to Congress.

C. The consequence

The remedy for a House too small to represent the country is legislative. Litigation is unlikely to succeed and may produce adverse precedent.

IV. Enlarging the House by statute

A. The power

Congress fixed the House's size by statute after every census from 1790 through 1910, and it may amend 2 U.S.C. § 2a(a) to set any number from 50 (one per state) to the ceiling. It may also provide for the number to grow with each census, as it did before 1911. The Constitution leaves the method of apportionment to Congress, Montana, 503 U.S. 442, so long as no state receives more than one Representative for every 30,000 of its people.

B. The ceiling, by the 2020 Census

The 2020 apportionment population was 331,108,434: the residents of the fifty states and their federal employees and dependents overseas. Divided by 30,000, it allows at most 11,036 Members (11,036.95, rounded down; an 11,037th Member would exceed the ratio). Read state by state, as in the 1792 veto, the ceiling is the sum of each state's population divided by 30,000, each rounded down. That sum cannot be more than 11,036 or fewer than 10,987, since rounding down each of fifty states loses less than one seat each.

C. What else changes

  • Districts. Each state would elect its delegation from single-member districts of about 30,000 people, 2 U.S.C. § 2c, drawn to the population-equality standard of Wesberry and its progeny. Districts are subject to the Voting Rights Act, which the Court has now read to require a strong inference of intentional discrimination. Louisiana v. Callais, No. 24-109 (U.S. Apr. 29, 2026); see also Allen v. Milligan, 599 U.S. 1 (2023); Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1 (2024). State courts may review congressional maps under state constitutions. Moore v. Harper, 600 U.S. 1 (2023).
  • The Electoral College. Each state's electors equal its Senators and Representatives. U.S. Const. art. II, § 1, cl. 2. The District of Columbia has the electors it would have as a state, but no more than the least populous state. Id. amend. XXIII. In a House of about 11,000, Representatives would be about 99 percent of the electors, and the College would follow population far more closely than it does today.
  • The census. Apportionment would continue to rest on the census and the timetable of 13 U.S.C. § 141(b) and 2 U.S.C. § 2a. The apportionment count must be an actual enumeration, not a statistical estimate. Dep't of Com. v. U.S. House of Representatives, 525 U.S. 316 (1999); Utah v. Evans, 536 U.S. 452 (2002).
  • Members. The qualifications for Members are fixed by the Constitution and cannot be added to by statute. Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Compensation is "ascertained by Law," U.S. Const. art. I, § 6, cl. 1, and a change takes effect only after an intervening election, id. amend. XXVII.

V. Meeting, deliberating and voting as a House of 11,000

A. The rules power

"Each House may determine the Rules of its Proceedings." U.S. Const. art. I, § 5, cl. 2. A House rule is valid if it does not "ignore constitutional restraints or violate fundamental rights," and there is "a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." United States v. Ballin, 144 U.S. 1, 5 (1892). Within those limits, a House may adopt rules for proposing, amending, debating, scheduling and voting by electronic means, including rules that let any group of Members put a proposal to a vote under published conditions. The protocol's merge rules are House rules of that kind, adopted and amendable by the Members.

A statute cannot bind a future House's rules. Because each House determines its own proceedings, procedural provisions enacted into law operate as exercises of each House's rulemaking power, which either House may change by its own rules.

B. The quorum, and physical presence

"[A] Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members." U.S. Const. art. I, § 5, cl. 1. Whether Members voting remotely count toward a quorum is unsettled:

  • The House voted by proxy during the COVID-19 pandemic. H. Res. 965, 116th Cong. (2020). A challenge brought by Members against the House's officers was held barred by the Speech or Debate Clause. McCarthy v. Pelosi, 5 F.4th 34 (D.C. Cir. 2021), cert. denied (2022).
  • A district court then held that the Quorum Clause requires physical presence and enjoined enforcement against Texas of a provision of the Consolidated Appropriations Act, 2023, which the House passed with a majority present only by proxy. Texas v. Garland, No. 5:23-cv-034-H (N.D. Tex. Feb. 27, 2024).
  • A Fifth Circuit panel reversed, holding that the text, history and tradition of the Quorum Clause contain no physical-presence requirement. Texas v. Bondi, No. 24-10386 (5th Cir. Aug. 15, 2025). The full court then granted rehearing en banc and vacated the panel opinion. No. 24-10386 (5th Cir. Jan. 14, 2026). The case is pending.

Two further provisions bear on a House that meets remotely: the Journal and the recording of the yeas and nays "at the Desire of one fifth of those Present," U.S. Const. art. I, § 5, cl. 3, and the rule that neither House may adjourn "to any other Place than that in which the two Houses shall be sitting" without the other's consent, id. art. I, § 5, cl. 4. Courts generally accept the enrolled bill, signed by the presiding officers, as conclusive evidence of its passage. Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). How far that rule shields a statute passed under remote-voting rules is part of what Bondi may decide.

Until the question is settled, a House of 11,000 should provide for a physical quorum somewhere: for example, by meeting in several places, or by rules under which a majority of Members are physically present, by rotation, when the House does business.

C. Software and the legislative power

"All legislative Powers herein granted shall be vested in a Congress." U.S. Const. art. I, § 1. Software cannot hold or exercise that power. It may count, record, verify and publish what Members decide under rules the Members adopt and can change. A bill the House passes under such rules must still pass the Senate in identical form and be presented to the President. Id. art. I, § 7, cl. 2; INS v. Chadha, 462 U.S. 919 (1983); Clinton v. City of New York, 524 U.S. 417 (1998). The House must still choose a Speaker. U.S. Const. art. I, § 2, cl. 5. A public, signed record of every ballot is consistent with the Journal Clause; a secret ballot on the passage of bills would be difficult to reconcile with it.

VI. The founding paper: what holds, and what to correct

The paper's historical argument holds: the Convention's choice of a large House that would grow with the people, the Anti-Federalists' demand for a "true likeness of the people," Madison's caution against a multitude, the history of § 2a, and the critique of agenda control by a few. These corrections would strengthen it:

  1. The cap is not unconstitutional under existing law. The paper calls § 2a an "artificial and unconstitutional limitation" (p. 3), but it later acknowledges that "[t]he Constitution describes a maximum, not a minimum, size limit" (p. 15). Every merits decision agrees. The argument should be put as one from the Constitution's design, addressed to Congress.
  2. The ratio is a ceiling, and it counts persons. The paper says the Convention "settled on proportional representation at a ratio of 1:30,000" (p. 1) and "one representative for every 30,000 citizens" (p. 3). The Convention set a ceiling ("shall not exceed"), apportionment counts persons, and "proportional representation" today usually means seats in proportion to parties' votes.
  3. The "greater latitude" remark was Gorham's. The paper places "would not . . . establish that as an absolute rule, but only give Congress a greater latitude" with Washington (p. 10). Gorham said it in moving the change; Washington spoke after him, calling the small number "among the exceptionable parts of the plan."
  4. The size comparison is a ratio, not a dilution. "Dilutes representation by 2369%" (pp. 3, 7) states a multiple as a percentage of dilution. A House at the ceiling would have about 23.7 times as many Members by the 2010 Census, and about 25.4 times as many by the 2020 Census (11,036 ÷ 435).
  5. Article the First is misdescribed. The paper's summary of its tiers (p. 12) omits the defect in its last clause, and the amendment was not merely "never . . . fully ratified": it was ratified by eleven states and remains pending. See Part I.D.
  6. The statute's history needs correcting. The 435-seat statute was enacted in 1929 and given its current form in 1941 by the 77th Congress; the 82nd Congress is only the first to which it applied (p. 14). Alaska and Hawaii were admitted as states in 1959, not "annex[ed]" in 1950 and 1958 (p. 14).
  7. The controlling cases are missing. The paper relies on Reynolds v. Sims, 377 U.S. 533 (1964), which concerns state legislatures. The governing cases are Wesberry v. Sanders (districts within a state) and U.S. Department of Commerce v. Montana (apportionment among states).
  8. Clemons was dismissed for want of jurisdiction. The paper suggests the Supreme Court's disposition reflected a "lack of remedy" (p. 16). The Court gave no reasons, and the lower courts now read Clemons as withdrawing jurisdiction over the question. Schroeder, No. 23-35606.
  9. The proposed system must fit Article I. The paper proposes that Title 2 regulate "legislative advancement" (p. 5). House procedure is governed by House rules under Article I, Section 5, which a statute cannot fix for future Houses. The paper does not address the Quorum Clause and physical presence, the Journal and the yeas and nays, the Speaker, or bicameralism and presentment. See Part V.
  10. Two consequences are not discussed. Enlarging the House would reshape the Electoral College, and it would require state legislatures to draw about 11,000 districts. See Part IV.C.

VII. Law and scholarship since 2017

  • Rucho v. Common Cause, 588 U.S. 684 (2019): claims of partisan gerrymandering are not justiciable in federal court.
  • Dep't of Com. v. New York, 588 U.S. 752 (2019), and Trump v. New York, 592 U.S. 125 (2020) (per curiam): the census and the apportionment base.
  • McCarthy v. Pelosi, 5 F.4th 34 (D.C. Cir. 2021): challenges to House proxy voting brought against its officers are barred by the Speech or Debate Clause.
  • Moore v. Harper, 600 U.S. 1 (2023); Allen v. Milligan, 599 U.S. 1 (2023); Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1 (2024); Louisiana v. Callais, No. 24-109 (U.S. Apr. 29, 2026): congressional districting under state constitutions and the Voting Rights Act.
  • Schroeder v. United States, No. 23-35606 (9th Cir. May 9, 2024), cert. denied, No. 23-1331 (U.S. Oct. 7, 2024): federal courts lack jurisdiction over challenges to the size of the House.
  • Texas v. Garland, No. 5:23-cv-034-H (N.D. Tex. Feb. 27, 2024), rev'd sub nom. Texas v. Bondi, No. 24-10386 (5th Cir. Aug. 15, 2025), vacated and reh'g en banc granted (5th Cir. Jan. 14, 2026): whether a quorum requires physical presence.
  • Anoo Dinesh Vyas, Why Capping the House at 435 Is Unconstitutional, 129 Penn St. L. Rev. 361 (2025): argues that the 1929 Act unconstitutionally relieved Congress of its duty to reconsider the House's size after each census, and proposes an automatic formula.

VIII. Conclusion

The Constitution describes a House that grows with the people, capped at one Representative for every 30,000 persons. It does not require Congress to build that House, and the courts will not order it. Congress may build it by statute, up to 11,036 Members by the 2020 Census, without amending the Constitution.

The recommended course is legislative:

  • amend 2 U.S.C. § 2a(a) to set the House's size at or near the ceiling, or to grow with each census, phased in over several apportionments;
  • provide for districting at the new scale under 2 U.S.C. § 2c;
  • adopt House rules for proposing, deliberating and voting at scale that preserve a physical quorum until Texas v. Bondi is resolved, keep a public record of every vote, and leave legislative power with the Members; and
  • treat the pending Congressional Apportionment Amendment, with its defect corrected, as a complement rather than a substitute.

John N. Phillips, Esq., B.S., J.D. WSBA No. 54962