A draft rule would stop counting undocumented immigrants and drop race from the Census

A draft rule circulating inside the federal government would stop counting undocumented immigrants in the 2030 census apportionment numbers and drop questions about race and sexual orientation, according to documents viewed by WIRED. The rule is in interagency review, which means it's a proposal moving through the system, not a decision that's been decided.

It does, however, appear to answer a question we've been tracking since June. The Commerce Department submitted a proposed rule then titled "Decennial Census of the Population of Americans, Proposed Residence Criteria and Proposed Regulations for Demographic Questions," with contents unpublished. Advocacy groups predicted at the time it would mean changes to residence criteria, a citizenship question, and changes to race and ethnicity questions. The document WIRED describes matches that prediction on every point.

The draft says the census will drop race and sexual orientation questions "to protect from any distortions created from the inclusion of personal questions," and that "illegal aliens (among others) should not be included in the apportionment count, they are not true inhabitants, members of the body politics [sic], or persons with 'usual residence' in the United States." Counting by citizenship status would likely require putting a citizenship question back on the form.

What the record says about each piece

Counting undocumented immigrants. The Constitution's Fourteenth Amendment requires apportionment to count "the whole number of persons in each State." Every census since 1790 has counted residents regardless of legal status, and the first Trump administration already tried this once: a 2020 memo ordering undocumented immigrants excluded from apportionment reached the Supreme Court, which dismissed the case as premature in December 2020, and the policy was rescinded before it was ever applied. Whether "persons" can be read to exclude anyone is the constitutional fight this rule would restart.

The citizenship question. The last attempt to add one, in 2019, was blocked by the Supreme Court 5 to 4, with Chief Justice John Roberts writing that the administration's stated justification was "contrived." The Court didn't rule the question unconstitutional, only that the reasoning given was pretextual, which leaves the door open to a better-argued attempt. Republican lawmakers have kept trying since, including Representative August Pfluger's COUNT Act and a letter from Senator Jim Banks to Commerce Secretary Howard Lutnick arguing the framers meant to count lawful inhabitants.

Race and sexual orientation. These two are different cases, and the draft treats them as one. Race has been collected on every census since the first one in 1790, so dropping it would end a 240-year unbroken record. Sexual orientation has never been on the decennial census at all. The Bureau was testing such questions for the American Community Survey until that research was halted in 2025, so the rule would foreclose a question that only ever existed in testing.

The stakes people cite are mostly about money and maps. Census counts steer federal funding, and an HHS employee told WIRED that removing undocumented residents would cost localities with large immigrant populations, while removing racial categories could hit tribal grants that key off the American Indian and Alaska Native category. Danah Boyd, a Cornell professor who studies the census, pointed at redistricting: "If we don't know that certain peoples live in a particular geography, we can't say, 'Oh my gosh, here's some massive inequality.'" A Commerce employee raised the response-rate problem, saying a citizenship question can make people afraid to answer at all, even without any enforcement attached.

That last one matters regardless of your politics, because an uncounted person is uncounted for everything: their state's House seats, their county's road money, their school district's funding. We covered how response fears already play out in what happens if you don't fill out the census.

The Commerce Department didn't respond to WIRED's requests for comment. Census questions are typically locked two to three years before the count, which puts the decision window for 2030 in the next year or so. This lands on top of the confirmed dataset losses from the noise infusion ban and the earlier reversal on race and ethnicity standards, which makes three major changes to what the 2030 census will measure, all moving in the same year.

Sources

The draft rule's contents and all quotes are from WIRED's reporting on documents it reviewed. The 2019 citizenship question ruling is Department of Commerce v. New York. The June proposed rule and the advocacy predictions are covered in our earlier piece on the proposed 2030 census changes. Apportionment language is from Section 2 of the Fourteenth Amendment.