Inside Trump’s Stealth Trick to Rig the Census—and Congress
The administration’s latest power grab is disguised as boring technical guidance.
Hi everyone. I’m Catherine Rampell of The Bulwark. Brian kindly let me take over his newsletter today. I hope you’re ready to get nerdy with me, because Donald Trump’s latest attempt to rig our elections in his favor involves a deviously complicated story about the census, administrative procedure, lawsuits, and demographic statistics. But it’s worth knowing because it’s an attack on American democracy and the rule of law just as much as the attempt to overturn birthright citizenship was.
If you like this kind of thing, I do way more of it at The Bulwark. My colleagues and I cover politics, economics, immigration, public health, breaking news, foreign policy, books, movies, and more—all through the prism of fighting to save democracy. Check it out.
–Catherine
This piece originally appeared in The Bulwark.
A vaguely ominous but little-noticed regulatory filing issued in late June could have a profound impact on business, immigrants, and the balance of power in our country.
The filing was a notification that the Trump administration had drafted new rules governing the decennial census. The actual specifics of those new rules remain scant. But from conversations I’ve been having with people close to the process, it is widely expected that the administration will try to recategorize millions of immigrants (both unauthorized and legal) as not actually living here in the United States.
Why would they do that? For several reasons.
The first is a longstanding animus that the president and his top aides have to the immigrant population. The administration has unleashed unprecedented border crackdowns and interior enforcement measures, in the service of a vast project of mass deportation. Through the census, it can continue the spirit of that campaign. Put another way: If you can’t deport every immigrant, you can at least remove evidence they exist.
The second is power.
An “actual Enumeration” of the entire U.S. population is required by the Constitution’s Census Clause. It’s pretty clear that the Constitution requires counting the full population, based on the use of the word “Persons” in this spot in the original text (rather than “Citizens” as used elsewhere), and similar language—“the whole number of persons”—in the Fourteenth Amendment.1
The resulting census is hugely important to the functioning of our government. It determines how many congressional representatives each state gets and how districts are drawn. It thereby also affects how many votes each state has in the Electoral College process used in presidential elections. And it plays a role in how trillions of federal dollars are allocated each year, since census data are used to calculate funding levels for health care programs, nutrition, highways, housing, school lunches, etc.
The stakes, in other words, are incredibly high. Which makes this rules submission process so profoundly important.
And here’s the kicker: So far, virtually no one has noticed.2
Let me warn you that this issue gets a little weedy. That’s by design; the administration wants you to not understand what they’re doing, so you won’t notice you’re being disenfranchised and robbed until it’s too late.
What MAGA learned in Trump 1.0
Let’s be clear: President Trump has been trying to ratfuck the census for years.
Most of the time, though, he has failed. You may recall that in his first term, he tried to jam a last-minute question about citizenship into the 2020 census. The administration claimed this was necessary to help the Department of Justice enforce federal voting rights laws. But that was BS; files discovered on a dead GOP operative’s computer revealed that the real reason was politics.
This consultant had written a secret study determining that a citizenship question “would clearly be a disadvantage to the Democrats” while being “advantageous to Republicans and Non-Hispanic Whites” during the redistricting process. The Census Bureau’s own senior staff likewise pointed out that adding the question would intimidate Latinos (and other minorities) into not participating, leading to major population undercounts. This is a problem because participation is supposed to be mandatory—that’s how you get “the whole number of persons.”
Ultimately the Supreme Court blocked the citizenship question in 2019, saying the government’s rationale was clearly “contrived” and “pretextual.”
But importantly, the justices didn’t say this question could never be added, only that the government needed to do a better job of dotting its i’s and crossing its t’s. Or hiding its i’s and obscuring its t’s, as it were: Trump officials had been a little sloppy in showing their partisanship and racism.
Trump 2.0 has been different: Just as partisan and racist, but far more professionalized.
Even before taking office, the current administration developed a playbook in Project 2025 (which prioritizes adding a citizenship question to the 2030 census, among other changes to the decennial count). After Trump’s win, his team hired an army of loyalists who understood pesky bureaucratic obstacles like the Administrative Procedure Act, which tripped them up so many times in Trump’s first term (including in that failed attempt to add a citizenship question).
“Before, they just didn’t know how to run the government,” said Thomas A. Saenz, president and general counsel of MALDEF, a Latino civil rights organization that has challenged multiple GOP attempts to mess with the census. “That’s still a little true today, but this administration, because of the first experience from the first one, is better—more competent at doing evil, if you will.”
That’s true for deportation policy, for backdoor budget cuts, and for this imminent rule change.
What we know so far
All that’s officially public right now about that proposed rule change is the title, which was published on an Office of Management and Budget website: “Decennial Census of the Population of Americans; Proposed Residence Criteria and Proposed Regulations for Demographic Questions” (emphasis added). (I have been trying to obtain a copy of the actual draft rule text; if you have it or know someone who does, please reach out through The Bulwark’s confidential tips line.)
Even so, people who depend on the decennial census3 are already sounding the alarm.
The widely held understanding—as detailed in panicked webinars, newsletters, and direct email pleas I have seen4—is that this coming rule will change the technical meaning of who “resides” in the United States to exclude some or most immigrants from being counted as living in the country.
That is, people who are foreign nationals would be categorized not only as citizens of their home countries but also residents of their home countries—and therefore (poof!) no longer part of the U.S. population.5
In a way, this is a brilliant idea.
After all, “residence criteria” sounds so . . . benign. It’s a thing that usually matters only to the bean-counters within the Census Bureau, who occasionally need guidance about how to categorize where someone lives on the official day of the decennial enumeration, known as “Census Day” (always April 1, in a year divisible by ten).
The Census Bureau decides lots of ambiguous residence cases, like a college student who lives on campus in a different state from their “home” for nine months out of the year, or a family who might be on vacation on April 1, or an executive on a business trip, or someone incarcerated in a prison, or a military service member deployed abroad. This nitpicky question came up a lot in the last decennial census—that is, spring 2020, when lots of people were temporarily displaced by the pandemic.
Since the early days of the republic, the Census Bureau has generally resolved such cases in the same way—by deferring to where someone usually lives and sleeps, rather than where they vote or have legal status (at least in circumstances where these things are not aligned). Here’s how it explained its residence criteria in 2018:
The state in which a person resides and the specific location within that state is determined in accordance with the concept of “usual residence,” which is defined by the Census Bureau as the place where a person lives and sleeps most of the time. This is not always the same as a person’s legal residence, voting residence, or where they prefer to be counted. This concept of “usual residence” is grounded in the law providing for the first census, the Act of March 1, 1790, expressly specifying that persons be enumerated at their “usual place of abode.” [Emphasis added.]
So what’s the evidence that the Trump administration is scheming to change all this—to bureaucratically “disappear” immigrants, even those who “live and sleep most of the time” in the United States?
First, of course, Trump and his underlings have publicly said they plan to find ways to exclude some immigrants from the 2030 census. Their targets have certainly been undocumented immigrants; but maybe others too.6
But the real tell that they would use “residence criteria” as a tool to erase immigrants came in a recent court filing.
You see, some red states have sued the Department of Commerce (which administers the census) because they also want immigrants to be excluded from the decennial census, and they want federal courts to make it happen. The states argue that counting everyone who’s foreign-born in the official census unfairly ends up apportioning more congressional seats to states with bigger immigrant populations.7
And literally the day after the Trump administration filed that OMB regulatory notice, it asked a judge to pause one of these ongoing lawsuits. Why? Because Trump was . . . maybe about to do something that would make the lawsuits brought by those red states moot.
According to the court filing, the Trump administration has “reached a significant stage of the rulemaking process for a 2030 Residence Rule . . . which may ultimately obviate or significantly narrow many of the issues at the heart of this litigation.”
Again, we do not know what this not-yet-public rule actually says. But we do know what the states’ demands are.
The plaintiffs in the lawsuit that Trump officials were responding to—a case filed by Missouri—had requested a ruling that would exclude “illegal aliens and temporary visa holders” from being counted in the census. As examples of “temporary visa holders,” the plaintiffs included people in the country on student visas or temporary work visas, according to Lauren Miller Karalunas, a lawyer with the Brennan Center’s Democracy Program.
In another case filed by a group of states and led by Louisiana, the plaintiffs similarly asked the judge to rule that the census should exclude “illegal aliens and aliens holding temporary visas.” Once again, the implication was anyone who doesn’t have a green card.
We don’t yet know how closely the states’ requested restrictions match whatever the Trump administration is cooking up. And we don’t know exactly when the rule text will be released.8 But note that if the Trump administration does change the residence criteria to exclude non-green-card-holding immigrants, it would need to do so by adding increasingly menacing questions to the census: Do you have a green card? What kind of visa are you on? Are you here legally?9
As that dead GOP operative could have told us, this would almost certainly depress participation from ethnic minorities—even those who are citizens, or who are here legally—given that they might rightfully fear the administration’s track record of harassing nonwhite people.
Again this would result in undercounts in certain places, which means that under the cloak of boring technical guidance, the Trump administration could steal congressional seats and redirect potentially hundreds of billions of federal dollars. Worsening the quality of the data is also a major problem when you consider that basically every other human-related data series we have in the United States is calibrated against the census, precisely because it’s a mandatory, complete count. As I’ve written before, worse data makes it fundamentally harder to assess the world around you and hold political leaders accountable for broken promises and bad outcomes.
None of this is settled yet. Litigation is still unfolding in real time.10 And meanwhile, statisticians and civil rights groups have begun organizing. If the Trump administration has gotten more professionalized this time around, so, at least, have the data nerds.
Footnotes
1
The original text of the Constitution uses the word “Citizen” or “Citizens” eleven times. But for the census, it specified that the population to be counted was “the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The last clause was made moot following the Thirteenth Amendment’s abolition of slavery. New language added in the Fourteenth Amendment confirmed the original text’s mandate to count “persons” instead of “citizens” in the census: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
2
Well, no one except the hardcore data nerds. Always listen to the data nerds—they’re the Cassandras you didn’t know you needed.
3
This is basically everyone who uses federal data of any kind, for any purpose. Which in theory should mean all of us, but in practice it’s mostly statisticians, demographers, civil rights attorneys, etc. So far.
4
Thank you to the Bulwark reader, and fellow data nerd, who first alerted me to this issue. See, I read your emails, even (especially) the panicked ones!
5
This would not even be the first time the Trump administration has attempted to erase immigrants’ existence from administrative records or federal data of some kind. See this effort at the Social Security Administration to categorize immigrants as dead, for example.
6
Note that Trump’s birthright citizenship executive order, which has been blocked by the Supreme Court, attempted to exclude not only the children of undocumented immigrants but also the children of non-green-card-holding legal immigrants (such as those on student visas or work visas). “In some ways, the birthright citizenship decision is an important precedent” for understanding what the Trump administration is planning, Saenz told me. “They are different provisions of the Constitution, but both of them are modified by the Fourteenth Amendment and there are many parallels.”
7
While some blue states, such as New York and California, benefit from including immigrants (undocumented or otherwise) in the census, some red states do, too. For whatever reason, Republicans in Texas and Florida have not made much of a fuss about all this, even though the Missouri/Louisiana/Trump preference to exclude immigrants would hurt them too.
8
The OMB filing indicates the rule will also include changes to how other demographic categories are listed or determined. This was also listed as a priority for the decennial census in Project 2025, because “there are concerns among conservatives that the data under Biden Administration proposals could be skewed to bolster progressive political agendas.”
9
Plaintiffs in the Louisiana case have proposed affirmative language in the form of questions that they’d like the court to require for the 2030 census and subsequent censuses: “1. Is this person a United States Citizen? 2. If this person is not a United States Citizen, is this person a lawful permanent resident of the United States?”
10
On Wednesday, in the Missouri case, the judge declined to pause the litigation. The Louisiana case has been stayed since March 2025.
 | A guest post by
|
I am sure that Goebbels in his tomb is Jealous of the ingenuity of the racism displayed in this intricate ruling…
It never stops