Trump Moves to Exclude Millions From the 2030 Census

Abuse of Power

Sep 15

NEWS & RESEARCH

In September 2026, the Census Bureau proposed a regulation that would exclude every immigrant who does not hold US citizenship or a permanent green card from the national head count that the government conducts once a decade. The exclusion would cover asylum seekers, undocumented immigrants and anyone in the country on a temporary lawful basis, a group that Pew Research Center estimates at roughly 16 million people. The stakes are substantial: The population count determines how many seats each state holds in the US House of Representatives, how many votes it casts in the Electoral College, how congressional and state legislative districts are drawn, and how trillions of dollars in federal funding for public services are distributed each year. The same proposal would also bar the census from asking about race or ethnicity. It would further prohibit any question about sexual orientation; the government has never asked that directly, though the 2020 count asked cohabiting couples to describe their partners as "opposite-sex" or "same-sex." In Trump’s first term, he tried to add a citizenship question to the 2020 count, but the Supreme Court blocked it in 2019 after finding the government's stated rationale "contrived." He then ordered the Commerce Department—which oversees the Census Bureau—to subtract undocumented immigrants from the totals used to apportion House seats among the states, an order the Bureau abandoned in January 2021 without ever producing the numbers. The administration is accepting public comments on the proposal through October 13 before issuing a final rule.

ANALYSIS & OPINION

Legal experts note that the 14th Amendment requires that representation in Congress be divided according to "the whole number of persons in each state" and says nothing about anyone's legal status. As the deputy director of the Voting Rights Project at the American Civil Liberties Union puts it, "The Constitution…doesn't say citizens. It doesn't say green card holders." The likeliest purpose of the Trump administration initiative is to shift political power away from Democratic areas with large immigrant populations, cutting the congressional seats they hold, the federal money they receive and the weight their residents carry when district maps are drawn. Meeta Anand, a senior director at the Leadership Conference on Civil and Human Rights, believes the effort could have "earth-shattering" effects for those places. But the damage would not be confined to politics, she says, because the country would also be "losing one of the most crucial demographic data sets that we have out there." Businesses use population forecasts to decide where to expand; health officials use the same numbers to track outbreaks and send help. "If you don't have a count of everyone who's there, you're not going to have the resources you need," says a data researcher at the Association of Public Data Users. "And that puts everybody at risk." Sorting residents by legal status means people in mixed-status households—US-citizen children among them—are likely to be missed alongside their parents, deepening an undercount of Latino residents the Bureau already struggles with. "You can imagine if we have undercounts…then their political power or their political representation gets diluted,” says the same researcher. Dropping the race and ethnicity questions carries consequences of its own: You cannot prove discrimination you are not permitted to measure. Rep. Adriano Espaillat calls it "rooted in racism and xenophobia." Says Espaillat: "Let's call this what it is: an attempt to erase people of color from the American population." Trump's term ends in January 2029, and the next president who takes office could reverse the rule before the 2030 count ever happens, but Jackson warns that by creating fear around participation, it could still have a "chilling effect, leading to lower response rates and deeper undercounts in immigrant communities."

SOURCES: Washington Post | NPR | NBC | ABC | Roll Call | The Emancipator | MS NOW

HOW TO FIX IT

Federal action:

Amend the Census Act (13 USC §141), which allows the Commerce Secretary to conduct the census "in such form and content as he may determine." Congress could close this loophole by saying that people must be counted where they usually reside, regardless of citizenship or immigration status, and the Secretary may not write criteria that exclude anyone on those grounds.

Similarly, amend the Reapportionment Act (2 USC §2a), which requires the president to report "the whole number of persons in each State" but never defines the phrase. Congress could write the definition in: Everyone whose usual residence is in the state on Census Day, regardless of immigration status.

This and the 13 USC §141 amendment need to move together. Amending §141 keeps people from being left out of the count, as the administration is trying to do now; amending §2a keeps them from being subtracted after it, which is the route Trump took in 2020. A court found that year that the Census Act and Reapportionment Act already forbid the second move, but the Supreme Court erased that ruling without deciding whether it was right—which is why the protection belongs in the statute.

Pass legislation to require by statute that every decennial census ask about race and ethnicity. Race has been on the form since the first count in 1790 and Hispanic origin since 1970, but neither is required by law, and 13 USC §5 leaves the questions to the Commerce Secretary, who "shall determine the inquiries, and the number, form, and subdivisions thereof"—which is why the administration could propose omitting them. Writing them into the statute makes removal something only Congress can do.

Amend 13 USC §6 which lets the Commerce Secretary "call upon any other department, agency, or establishment of the Federal Government" for information and acquire records from states, localities and private companies. Congress can bar the Census Bureau from receiving or using immigration-status records from any federal agency for the purpose of deciding who is counted or how they are classified, and to prohibit data-sharing agreements written for that purpose. The proposed rule cannot function without those records; there is no other way to sort 340 million residents by legal status. A statutory firewall blocks that mechanism.

Reintroduce and pass the Ensuring a Fair and Accurate Census Act, which would bar the census from asking anything the Commerce Department did not submit to Congress on schedule, and require that any new question be tested and certified, with the Government Accountability Office reviewing the work. Federal law already requires the department to send Congress the subjects three years before Census Day and the questions two years out, but nothing happens if it ignores that schedule and no one checks its reasoning. The bill would likely block a citizenship question from being added—since nothing could appear on the form without surviving independent testing—but it would not stop the race question from being taken off, because Congress receives the proposed list but has no power to reject it. Thus, Congress should also add a requirement that the questionnaire take effect only if it approves it.

Vote NO on the Make It Count Act and the Making American Elections Great Again Act, both of which would essentially write the administration's proposal into federal law by establishing a citizens-only apportionment count. Blocking them is a direct fix because a regulation can be withdrawn by the next administration or struck down as unlawful, while a statute would give the same policy a durability the rule does not have and force challengers to fight it on constitutional grounds alone.

Strike Section 553 from the House's 2027 Commerce, Justice, Science funding bill (H.R. 8845), which would bar the Census Bureau from spending any money to include immigrants unlawfully present in the country in apportionment counts. The House Appropriations Committee approved the bill in May, but nothing has been enacted yet, so the provision can still be amended out or left out of the final package. If it does become law, it would not expire with the year's funding: it applies to money from "this or any other Act" and to "subsequent decennial censuses."

State action:

Pass data-shield laws barring state and local agencies from handing records to federal agencies for the purpose of determining anyone's immigration status in census operations. The proposed rule does not explain how the Bureau would sort 340 million residents by legal status, but it contemplates drawing on records held by "state and local governments" alongside federal ones. Those state files—driver's licenses, benefits enrollment, vital records, school and health agency data—are a supply line the federal government does not own. According to longstanding constitutional doctrine, states cannot be forced to hand those records over, but nothing stops state actors from volunteering them. A shield law converts that choice into a prohibition, so compliance no longer depends on who happens to run the agency or on how much federal funding is threatened. Although this type of state law would not prevent the rule from taking effect, it would limit its impact.
Pass state laws requiring that legislative and congressional districts be drawn using total resident population, counting everyone regardless of immigration status. The federal count determines how many House seats a state gets, and a state cannot change that number. But the state itself draws the district lines inside its borders, and it chooses which population numbers to use when making those districts. A state law fixing that choice means a neighborhood full of immigrants still counts as fully populated when the map is drawn, so it gets its own representative instead of being folded into someone else's district. States could go further and build up their own population estimates programs as a backstop if the Bureau stops publishing usable data. Every state already has a designated demographic agency working with the Bureau, and some—like California and Washington—publish official state estimates of their own.

Litigation:

The administration’s proposal is bound to face legal challenges. The American Civil Liberties Union (ACLU) is weighing a lawsuit, and New York Attorney General Letitia James said that her office is "exploring our legal options” as well. Challengers have three main arguments.

The first rests on the Administrative Procedure Act (APA), which requires federal agencies to give real reasons for the rules they write. The Census Bureau says dropping the race and ethnicity questions will get more people to respond, a claim its own research contradicts, and that is the same kind of invented justification the Supreme Court threw out in 2019, when it blocked Trump's first attempt to add a citizenship question because the government's stated rationale "seems to have been contrived."

The second is constitutional, and it is the plainest: the 14th Amendment apportions seats in Congress by "the whole number of persons in each State," and it says nothing about citizenship or immigration status.

The third is statutory. In September 2020, a panel of federal judges in New York ruled that Trump's order to leave undocumented immigrants out of the count violated both the Census Act (13 USC §141) and the Reapportionment Act (2 USC §2a), because the two require a single population total to pass from the Commerce Secretary to the president to Congress, not one official number and a second, edited one. The Supreme Court later vacated that decision without deciding whether it was right, finding the challenge premature. The catch, though, is that this rule is built differently, as it does not produce two sets of numbers, but rather changes who is counted in the first place.

Legislation: H.R.8326 - Ensuring a Fair and Accurate Census Act