The census has counted noncitizens since 1790, and the Trump administration wants to stop

When U.S. marshals began the first census in August 1790, their instructions asked six questions of each household. None of them was about citizenship. The Constitution told them to count "the whole Number of free Persons" in each state, and they did, citizen or not.

Every census since has followed that rule for the count that divides up seats in the House of Representatives. The Trump administration's proposal for the 2030 census would break it by leaving noncitizens without green cards out of the apportionment totals. It is the latest in a string of attempts over the past century, and none of the earlier ones changed the count.

What the Constitution says

The original text in Article I, Section 2, apportioned House seats by adding up the free population, excluding "Indians not taxed," and counting three-fifths of enslaved people. The Fourteenth Amendment rewrote that sentence in 1868 after the Civil War. Its version, still in force, says seats go to states "counting the whole number of persons in each State, excluding Indians not taxed."

The drafters in 1868 used the word "persons," where they could have written "citizens" or "voters." Section 2 of the same amendment uses "citizens" in the very next sentence, when it describes a penalty for states that deny men the vote. The Census Bureau has read the apportionment clause to cover every resident ever since. The "Indians not taxed" exception stopped applying to anyone after 1940, when the bureau began counting all American Indians in the apportionment totals.

The census has asked about citizenship often

Counting noncitizens and asking about citizenship are separate questions, and the census has done both.

• 1820 and 1830. The forms had a column for "foreigners not naturalized." They were tallied and still counted.
• 1850. The census asked every free person's place of birth for the first time, the start of the foreign-born series still published today.
• 1870. Right after the Fourteenth Amendment, the form asked whether each man was a citizen aged 21 or older, to measure how many men states were barring from voting.
• 1890 to 1950. Foreign-born residents were asked whether they had naturalized.
• Later decades. The citizenship question moved to the long form sent to a sample of households, and since 2005 it has been part of the American Community Survey.

In all of those years the answers produced statistics. They were never subtracted from the apportionment count.

A century of attempts

After the 1920 census, Congress deadlocked over reapportionment in part because immigrant-heavy cities stood to gain seats, and it became the only census in the country's history not followed by a reapportionment. Congress settled the matter with a permanent formula in 1929.

In 1980 a group called the Federation for American Immigration Reform sued to have undocumented immigrants left out of that year's count. A federal court dismissed the case, FAIR v. Klutznick, for lack of standing. A 1988 suit brought by members of Congress, Ridge v. Verity, ended the same way.

The first Trump administration pushed hardest. It tried to add a citizenship question to the 2020 form, and the Supreme Court blocked it 5 to 4 in 2019, with Chief Justice John Roberts calling the stated justification "contrived." In July 2020 the president ordered undocumented immigrants excluded from the apportionment totals. The Supreme Court dismissed a challenge that December as premature, and President Joe Biden revoked the order on his first day in office, before it was ever applied. The 2020 apportionment counted everyone.

A related question reached the court in 2016. In Evenwel v. Abbott, the justices ruled unanimously that Texas could draw its state legislative districts using total population. They left open whether a state could choose to use something else.

How many people are involved

The 2020 to 2024 American Community Survey counted 22,716,619 noncitizens in the United States, 6.7 percent of residents. That total includes green card holders, whom the new proposal would keep counting, so it is an upper limit on the group that would be removed.

The broader foreign-born population, which includes naturalized citizens, stood at 47.3 million in the same survey, 14.1 percent of residents, up from 12.7 percent in the 2006 to 2010 survey. Noncitizens are a little under half of that group.

The 2030 proposal is covered in the Trump administration's 2030 census proposal and the earlier draft rule on undocumented immigrants and race questions. The longer history of immigration in the count is in 250 years of the foreign-born population, and the political stakes of apportionment in how the census shapes politics.

Sources

Constitutional text is from Article I, Section 2, and the Fourteenth Amendment, Section 2. Historical question content is from the U.S. Census Bureau's published census questionnaires and its history of the decennial census. Court cases cited are Department of Commerce v. New York (2019), Trump v. New York (2020), Evenwel v. Abbott (2016), FAIR v. Klutznick (D.D.C. 1980), and Ridge v. Verity (W.D. Pa. 1988). Noncitizen and foreign-born figures are from the Census Bureau's American Community Survey 5-year estimates, tables B05002 and B05001. The Census Bureau does not publish a count of noncitizens without legal permanent residence.