Trump administration proposes census rule to exclude noncitizens from apportionment count

The Trump administration proposed a rule on September 9, 2026, to exclude noncitizens, including illegal immigrants and temporary visa holders, from the 2030 Census apportionment count. The rule redefines "usual residence" by tying it to federal tax records rather than physical presence. Internal documents reveal the Commerce Department overruled objections from the Treasury Department regarding the reliability of tax data. Critics argue the policy violates the 14th Amendment and will cause severe undercounts, while proponents claim it restores fair representation.

Census apportionment rule proposal

• ▪The Trump administration proposed a rule on September 9, 2026, to exclude noncitizens from the population count used to apportion congressional representation for the 2030 Census.
• ▪The public has until October 13, 2026, to submit comments on the proposed Census Bureau apportionment rule before it is finalized.
• ▪The proposed Census Bureau rule would count only U.S. citizens and lawful permanent residents at their usual residence for the purpose of apportionment.

Constitutional interpretation arguments

• ▪The Trump administration argues that illegal aliens and temporary visa holders lack the tie and allegiance to the United States required to establish a usual residence.
• ▪The Trump administration cites the 1992 Supreme Court case Franklin v. Massachusetts to argue that the Census Bureau has broad discretion to modify its residence criteria.

Usual residence redefinition

• ▪The proposed rule would redefine usual residence from where a person lives and sleeps most of the time to a location consistent with and evidenced by their tax records.
• ▪Former IRS Chief Data and Analytics Officer Barry Johnson stated that tax records are limited because they can reflect multiple locations, P.O. Boxes, or accountant addresses.
• ▪The proposed rule establishes a reference period ending April 1, which data experts state would count people at their winter residences and shift population figures to southern states.

Treasury-Commerce internal conflict

• ▪The Treasury Department opposed the use of tax records as controlling evidence of residence, arguing they should only serve as corroborating evidence.
• ▪The Commerce Department rejected the Treasury Department's concerns, stating that administrative records are sometimes the only or best available evidence of usual residence.

Projected congressional seat redistribution

• ▪Representative Andrew Clyde introduced the Make Apportionment Great Again Act to force states to rely on existing records to reapportion House seats by 2027 using only citizens.
• ▪A 2024 report by the Center for Immigration Studies asserted that counting all immigrants, legal and illegal, resulted in a net increase of 14 House seats in Democratic-leaning states.

Anticipated legal challenges

• ▪Opponents argue that excluding noncitizens from apportionment diverges from historical understandings of the 14th Amendment, which mandates counting the whole number of persons in each state.
• ▪Georgetown University professor Amy O'Hara warned that a lack of transparency in resolving administrative data discrepancies could lead to a systematic undercount in the 2030 Census.