The Trump administration has just made its most powerful move yet in the president’s long-running battle to ensure that the American government represents Americans.
It did so last week by proposing a rule that would require the Census Bureau to count only U.S. citizens and green card holders for apportionment purposes in the 2030 Census.
If implemented, millions of illegal aliens would no longer distort the political map. House seats and Electoral College votes would be divvied up based on population numbers reflecting the “We the People” our system exists to represent. The rule would neutralize foreign influence; eliminate the undue political power sanctuary jurisdictions have accrued through decades of mass illegal immigration; and restore the “one man, one vote” principle by ending the dilution of Americans’ voting power that has occurred through counting non-citizens in the population figures used to draw up districts.
The rule accomplishes these ends by simply modifying the Census Bureau’s so-called “residence criteria.” From the very first Census, tabulators have counted people at their “usual residence” to determine the “persons” in each state used to apportion representatives. In recent decades, the Commerce Department, which carries out the Census and devises the rules and regulations governing the count — through the Census Bureau — has included residents regardless of citizenship status. In 2020, for example, its criteria stipulated that foreigners “living in” the U.S. be counted. Under the new proposed rule, only dual nationals or lawful permanent residents would be counted “[c]ounted at their usual residence” for apportionment.
If finalized, the policy will almost surely come under aggressive legal attack. Anticipating that attack, the rule lays out two reasons why the Trump administration is modifying the residence criteria. The first is Constitutional: Illegal aliens and most other classes of non-citizens are not the “persons” entitled to representation via apportionment. The “usual residence” at which “persons” call home, in the Bureau’s originalist reading, which it details in the rule, are “tied to allegiance, durable permission from the sovereign to settle with the United States, and establishment of domicile within the United States.”
Consequently, illegal aliens, and all other foreigners save for legal permanent residents, “are not true inhabitants, members of the body politic, or persons with a ‘usual residence’ in the United States due to their lack of a sufficient tie and allegiance…” Therefore, they ought to be excluded from the apportionment base.
The second reason for the proposed rule is legal and prudential: Irrespective of one’s constitutional interpretation, the Trump Census Bureau’s exclusion of illegal aliens and others from the apportionment base is a “lawful and appropriate exercise” of the Bureau’s discretion given the authority granted to it by Congress and as reflected in Supreme Court precedent.
That precedent includes Franklin v. Massachusetts, a 1992 case wherein the court upheld a decision by the George H.W. Bush Census Bureau to count all overseas employees of the Department of War at their “home[s] of record,” contrary to existing practice. The Supreme Court found then that “the Secretary of Commerce made a judgment, consonant with…the text and history of the Constitution, that many federal employees temporarily stationed overseas had retained their ties to the States and could and should be counted toward their States’ representation in Congress.”
What’s more, that the Census Bureau has modified its residence criteria previously “depending on changing circumstances and operational decisions” reflects what the Supreme Court held in Wisconsin v. City of New York, another case referenced by the Bureau. The Trump administration argues it should be given the same discretion as its predecessors.
The proposed rule marks the latest salvo in a fight I’ve been covering at RealClearInvestigations, here at The Federalist, and at the American Mind extending back to the first Trump administration to insulate our political system from illegal immigration via the Census. It appears to be responsive to red states who have been litigating against the Trump administration to force it to, for example, change its residence criterion, and mirrors their arguments.
Perhaps most importantly, the rule seems to take into account Trump I’s experience at the Supreme Court. Then, the president sought to exclude certain classes of non-citizens from the Census by executive action, not regulation. The left-wing lawfare apparatus challenged the policy, and the case escalated to the Supreme Court. In Trump v. New York, the administration raised similar arguments to those raised in the proposed rule. But the court failed to weigh in, dismissing the case in December 2020 on standing and ripeness grounds. The Biden administration would rescind the Trump administration policy before apportionment took place.
The case may be relevant, however, given what occurred in oral arguments. There, several justices homed in on practical questions, like the size of the illegal alien population the administration had identified through federal records, whether and to what extent it was prioritizing specific subsets of them, and what the impact of excluding such groups would be.
The court did not proceed in part because many of these matters were in flux. This time around, the Trump administration may have settled such matters. That’s because it has clearly laid out its intent to exclude all but citizens and legal permanent residents, and appears to have a comprehensive plan for separating this population from the excludable one.
According to the rule, “The Census Bureau’s administrative record holdings is nearly exhaustive of the civilian Federal government’s holdings,” including records from the Departments of Treasury, Health and Human Services, Homeland Security, State, and War, along with the U.S. Postal service, state, local and tribal records, and third-party commercial data.
“The Census Bureau therefore now has access to substantially more information than it did when it conducted the 2020 Census, and the Census Bureau expects to continue obtaining additional information moving forward.” The rule adds that the Census Bureau has also developed “a highly-advanced data linkage infrastructure,” to separate citizens and various classes of non-citizens – something it lacked previously.
The proposed rule also contemplates potentially adding a question to the Census regarding respondents’ “legal status” that could assist in its efforts to exclude illegal aliens. The first Trump administration tried to reinstate a query authorities had asked for decades: “Is this person a citizen of the United States?” The Supreme Court stymied such efforts despite holding the practice of reinstating the question to be constitutional, in one of Chief Justice Roberts’ most asinine, blatantly anti-Trump rulings to date.
Whether the Trump administration will ultimately prevail based on its constitutional interpretation or executive authority; how it will go about identifying and excluding non-citizen classes from the apportionment base; and if it can resolve these matters in court and ensure the next administration maintains these policies — given the Census count will occur in 2030, after Trump II has ended — remain open questions.
But this proposed rule is the crucial first step to blunting the impact of decades of open borders via the Census and restoring genuine representative government.
