On September 9, 2026, the Commerce Department posted a proposed rule for public inspection that would change who counts toward each state's share of the House of Representatives and the Electoral College. Published in the Federal Register on September 10 as “Decennial Census of the Population of Americans; Proposed Residence Criteria and Proposed Regulations for Demographic Questions” (Docket No. 260903-0005, RIN 0607-AA75), it is open for comment until October 13, 2026.
The rule does two things. First, it rewrites the definition of “usual residence” that has governed the census since the First Census Act of 1790. A person's usual residence would become the place where they have “lawfully spent the greatest number of days” between January 3 and April 1 of the census year, and it “should be consistent with, and evidenced by, their tax records (e.g., tax returns, W-2 forms).” Under the proposed section 60.4, foreign citizens who are U.S. citizens or lawful permanent residents are counted; “all other citizens of foreign countries as of April 1 of a decennial census year” are “not counted for apportionment.” The rule's own summary says the count should factor in “an element of allegiance,” and it describes the excluded group as “illegal aliens and aliens whose legal status is less durable and indefinite in length than lawful permanent resident status.” Talking Points Memo, which obtained the draft in August, reported the published version goes further than the draft: it drops refugees and asylees from the count, changes how military members are tallied, and adds that “the Census Bureau welcomes comments on the inclusion of a legal-status question on the short-form decennial census questionnaire.”
Second, the rule would set “standards and restrictions” on demographic questions, calling race, ethnicity and sexual orientation “immaterial personal characteristics” and citing the Supreme Court's affirmative-action ruling in Students for Fair Admissions. The effect, as NPR, Roll Call and The New Republic reported, would be to stop asking about race and ethnicity for the first time since 1790, with Newsweek reporting the questions would be shifted to the smaller American Community Survey.
The Fourteenth Amendment requires that House seats be apportioned by “the whole number of persons in each State.” It says nothing about legal status, and no census has ever excluded residents from apportionment on that basis. Terry Ao Minnis of Asian Americans Advancing Justice: “The U.S. Constitution requires apportionment based on the whole population in each state, regardless of citizenship status, and the Supreme Court's recent birthright citizenship ruling undercuts the administration's reliance on 'allegiance' as a basis for who counts.” New York Attorney General Letitia James: “The Constitution is clear. Every person living in the United States, regardless of immigration status, must be counted in the Census,” adding, “We stopped the Trump administration's census attacks in 2020, and we're exploring our legal options to fight back again.”
This is the third attempt. In 2019 the Supreme Court blocked a citizenship question on the 2020 census, 5-4, with Chief Justice Roberts finding the administration's stated reason “contrived”; files left by the late Republican strategist Thomas Hofeller had shown the purpose was to shift representation away from Democratic states. A July 2020 memorandum ordering undocumented immigrants excluded from apportionment was rejected in federal court. Thomas Saenz of the Mexican American Legal Defense and Educational Fund said a legal-status question would be “completely untested and potentially far worse than a citizenship question.”
The stakes are measurable but contested. Pew Research estimates about 16 million immigrants lack permanent legal status. A 2020 Pew analysis found excluding undocumented immigrants alone would have moved three House seats, from California, Florida and Texas to Alabama, Minnesota and Ohio; a 2025 study in PNAS Nexus found a “roughly neutral effect on House control and the Electoral College since 1980.” The published rule's broader exclusion of temporary visa holders, refugees and asylees has not been modeled. Census data also drives redistricting at every level of government and the distribution of federal funds.
The process drew its own objections. The day before the rule appeared, the administration denied stakeholder meeting requests filed under the 1993 executive order governing significant regulations, after the White House and Commerce concluded in a draft obtained by TPM that the rule is “significant, but not economically significant.” Howard Fienberg of the Insights Association called that “fantastically idiotic,” saying removing the race benchmark would be “unmooring pretty much almost all of the insights garnered across the United States.” Mary Jo Mitchell of the Population Association of America: “We weren't involved or consulted or informed at any stage of this in a meaningful way.” Trump, on Truth Social: “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS.” The White House and Commerce Department did not respond to TPM's request for comment. See also DeSantis Signs a Mid-Decade Florida Congressional Map Favoring Republicans in 24 of 28 Seats, and the Courts Let It Stand for 2026 for the mid-decade redistricting the administration has already directed.
Update (September 17, 2026): the government's own tax authority objected to the rule's most consequential provision and was overruled. Talking Points Memo obtained internal track changes showing input from Commerce, Treasury and the White House on the redefinition of “usual residence.”
Treasury's position was that tax records should corroborate an address, never establish one. In the internal record, its officials wrote that tax return information “may be used as corroborating evidence of an individual's residence, but no particular tax record is controlling, and the evidentiary weight assigned to such information should reflect the purpose, timing, and reliability of the particular data element.”
Commerce rejected that and kept the stronger language: “We do not want to limit administrative records to serving only as 'corroborating evidence' of usual residence, as there are certain situations where administrative records are the only and/or best available evidence.”
Specialists told TPM the approach would misplace people. Barry Johnson, formerly the IRS's chief data and analytics officer, asked, “Why are they fixated on these tax records when they already have access to all these other administrative records that in combination give them much better coverage than just the tax records alone?” He added, “At first, I thought it was a mistake because it seemed like such a bad idea.” Amy O'Hara, a former Census Bureau executive now at Georgetown, noted that small record mismatches become exclusions: “There could be administrative data that has my name with or without the apostrophe,” and “if they didn't want to count me, they could say that there is a discrepancy there and potentially drop the records.”
One number needs care. After 2020, the Census Bureau modeled a count built entirely from 31 administrative records already in the government's hands, and that model undercounted U.S. citizens by three million. That is a finding about a records-only count using many data sources, not a projection of this rule's effect.
Commerce, Treasury and the White House did not respond to TPM.