The United States Census Bureau, under the Department of Commerce, recently published a proposed rule that could significantly reshape the mechanics and implications of the decennial census. Appearing in the Federal Register, this proposal seeks to add two new parts to the Code of Federal Regulations. One part would codify residence criteria used to determine a person's "usual residence" for counting purposes, while the other would establish standards and restrictions for demographic questions on census questionnaires.
The Bureau asserts that these changes are designed to prioritize and fulfill its Constitutional mandate to count the "whole number of persons in each State" for congressional apportionment. A stated goal is to achieve a "colorblind" count that is not "distorted in any way by questions about immaterial personal characteristics, such as race." This move follows years of intense debate and legal scrutiny over who should be included in the population base for apportioning seats in the U.S. House of Representatives.
Historical Context of "Usual Residence"
The concept of "usual residence" has been central to the decennial census since its inception in 1790. The First Census Act established that a person's residence should be determined by their "usual place of abode" or where they "usually reside." This principle, though long-standing, has been subject to evolving interpretations and specific criteria developed for each census, reflecting changing circumstances and operational decisions.
Supreme Court decisions, such as Franklin v. Massachusetts and Wisconsin v. City of New York, have affirmed the Census Bureau's "virtually unlimited discretion" in establishing these criteria. For example, before 1970, federal personnel stationed overseas were not allocated to any state for apportionment. This changed during the Vietnam War era when the Census Bureau began allocating military personnel to their "home of record," a practice extended to all overseas federal employees by 1990. The Supreme Court upheld this discretion, noting that "usual residence" can encompass an "element of allegiance or enduring tie to a place."
Counting Foreign Citizens and the Apportionment Debate
A critical point of contention has been the counting of foreign citizens, particularly those present in the United States without legal authorization, often referred to as "removable aliens." In the 2020 decennial census, foreign citizens "living in" the U.S. were counted at their usual residence, without distinction between legal and unauthorized presence. Those merely "visiting" were not counted.
This approach has drawn significant legal challenges from states and criticism from within the federal government. A notable example is the July 21, 2020, memorandum from President Trump, which sought to exclude "illegal aliens" from the apportionment base following the 2020 Census. Additionally, numerous congressional bills, including the Equal Representation Act, COUNT Act, Correct the Count Act, Count Only Citizens Act, and No Representation Without Legal Immigration Act, reflect ongoing legislative efforts to address this issue.
The Argument for "Inhabitants" and Allegiance
A primary legal argument against including non-citizens, particularly "removable aliens," in the apportionment count centers on the interpretation of the term "persons" in the Apportionment Clause of Article I, Section 2. Proponents of this argument contend that while "persons" was chosen over "citizens" primarily due to the Three-Fifths Compromise, it was largely understood at the Founding to be synonymous with "inhabitants." They argue that "inhabitants" implied membership in the "body politic" and a sense of allegiance or intent to remain indefinitely, rather than mere physical presence.
Historical sources, including early legal interpretations and the writings of figures like John Adams, support the idea that an "inhabitant" denoted more than a temporary resident, requiring "Domicil and the animus habitandi" or an intent to establish a lasting presence and municipal ties. This perspective suggests that individuals without such ties or legal status should not be considered for the purposes of state representation in Congress.
Proposed Restrictions on Demographic Questions
The second part of the proposed rule focuses on establishing standards and restrictions for the inclusion of demographic questions on the census short-form questionnaire. The Bureau's stated intent to achieve a "colorblind" count by not allowing "immaterial personal characteristics" to distort the count suggests that certain demographic data points might be deemed irrelevant for the core apportionment function. While the immediate implication might be to streamline the census for apportionment, it could also influence the types of demographic data collected and disseminated for other federal programs and research that rely on detailed population characteristics.
Implications and Future Landscape
These proposed changes represent a significant shift in the Census Bureau's approach to its foundational task. If finalized, they could have profound implications for the political landscape of the United States. Altering the basis for apportionment could lead to a reallocation of congressional seats among states, directly impacting their representation and influence in national policy-making. States with large non-citizen populations could see their congressional representation reduced, while states with smaller non-citizen populations could see theirs increase.
The proposals are almost certain to face rigorous scrutiny and renewed legal challenges. The debate over who constitutes the "body politic" for constitutional apportionment purposes is deeply rooted in differing interpretations of the Constitution and historical practice. The Census Bureau's attempt to more strictly define "usual residence" with an emphasis on "allegiance" and to limit demographic inquiries will ignite further discussion among legal professionals, policymakers, and civil rights advocates about the balance between historical constitutional intent and contemporary demographic realities. The comment period, closing October 13, 2026, offers a crucial window for stakeholders to voice their perspectives before these potentially transformative rules are finalized.
