Trump Administration Proposes Census Rule to Count Only Citizens and Green Card Holders for Apportionment

The Trump administration has proposed a significant change to how the U.S. Census Bureau counts the population for apportionment purposes, moving to exclude illegal aliens and most non-citizens from the base used to allocate House seats and Electoral College votes starting with the 2030 Census. According to a report by The Federalist, the rule—unveiled last week—would require that only U.S. citizens and lawful permanent residents (green card holders) be counted for reapportionment, a shift that could neutralize the political influence of sanctuary jurisdictions and restore what supporters call the ‘one man, one vote’ principle.

Under current practice, the Census has historically counted all residents at their ‘usual residence,’ regardless of citizenship or legal status. The 2020 Census, for example, included foreigners ‘living in’ the United States. The proposed rule modifies the Census Bureau’s residence criteria so that only dual nationals and lawful permanent residents are counted at their usual residence for apportionment. The change aims to prevent millions of illegal aliens from distorting the political map, a distortion that The Federalist argues has diluted Americans’ voting power and awarded undue political strength to jurisdictions that have embraced mass illegal immigration.

Constitutional and Legal Justification

The proposed rule offers two primary justifications for the change, anticipating aggressive legal challenges. First, the administration argues that illegal aliens and most other non-citizens are not the ‘persons’ entitled to representation through apportionment. In its originalist reading, the Census Bureau contends that ‘usual residence’ is tied to allegiance, durable permission from the sovereign to settle within the United States, and the establishment of domicile. Consequently, illegal aliens—and all other foreigners except legal permanent residents—are not considered ‘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.’

The second rationale is that, regardless of constitutional interpretation, excluding these groups from the apportionment base is a ‘lawful and appropriate exercise’ of the Bureau’s discretion, as granted by Congress and reflected in Supreme Court precedent. The rule cites Franklin v. Massachusetts (1992), where the Court upheld a Bush-era Census decision to count overseas federal employees at their home of record. The Court found that the Secretary of Commerce had made a judgment consistent with the Constitution’s text and history. Additionally, the rule references Wisconsin v. City of New York, which affirmed that the Census Bureau has historically modified its residence criteria based on changing circumstances and operational decisions. The Trump administration argues it deserves the same discretion as its predecessors.

Learning from Past Legal Battles

The proposal appears to be a direct response to lessons learned from the first Trump administration’s failed attempt to exclude non-citizens from the Census. Then, Trump sought to do so through executive action rather than regulation. The policy was challenged by left-wing litigants, and the case, Trump v. New York, reached the Supreme Court. In December 2020, the Court dismissed the case on standing and ripeness grounds, declining to weigh in on the merits. The Biden administration subsequently rescinded the policy before apportionment occurred.

However, The Federalist notes that oral arguments in that case may have informed the new rule. Several justices focused on practical questions, such as the size of the illegal alien population identified through federal records, whether the administration was prioritizing specific subsets, and the potential impact of exclusion. The Court did not proceed partly because these matters were in flux. This time, the administration has clearly laid out its intent to exclude all but citizens and legal permanent residents and appears to have a comprehensive plan for separating these populations.

According to the rule, the Census Bureau now has access to ‘nearly exhaustive’ administrative record holdings 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,’ the rule states, adding that the Bureau has developed a ‘highly-advanced data linkage infrastructure’ to separate citizens and various classes of non-citizens—a capability it previously lacked.

The proposed rule also contemplates potentially adding a question about respondents’ ‘legal status’ to assist in excluding illegal aliens. The first Trump administration attempted to reinstate a citizenship question that had been asked for decades, but the Supreme Court blocked the effort despite holding that reinstating the question was constitutional. The Federalist characterizes that ruling as one of Chief Justice Roberts’ most ‘asinine, blatantly anti-Trump rulings to date.’

Uncertain Road Ahead

Whether the Trump administration will ultimately prevail—either on its constitutional interpretation or its executive authority—remains an open question. How it will identify and exclude non-citizen classes from the apportionment base, and whether it can resolve these matters in court and ensure the next administration maintains these policies given that the 2030 Census will occur after Trump leaves office, are also unresolved. But according to The Federalist, this proposed rule is a crucial first step toward blunting the impact of decades of open borders via the Census and restoring genuine representative government.

Source: thefederalist.com — https://thefederalist.com/2026/09/17/why-trumps-plan-to-stop-noncitizens-from-rigging-the-census-might-work-this-time/