Presidential Documents

Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents 7015 

Executive Order 13986 of January 20, 2021 

Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census 

By the authority vested in me as President by the Constitution and the 

laws of the United States of America, it is hereby ordered: 

Section 1. Background. We have long guaranteed all of the Nation’s inhabitants representation in the House of Representatives. This tradition is 

foundational to our representative democracy, for our elected representatives 

have a responsibility to represent the interests of all people residing in 

the United States and affected by our laws. This tradition also respects 

the dignity and humanity of every person. Accordingly, the executive branch 

has always determined the population of each State, for purposes of congressional representation, without regard to whether its residents are in lawful 

immigration status. 

The census and apportionment processes are enshrined in the Constitution. 

The Fourteenth Amendment apportions seats in the House of Representatives 

‘‘among the several States according to their respective numbers, counting 

the whole number of persons in each State.’’ (U.S. Const. amend. XIV, 

sec. 2.) Article I, in turn, provides that, in order to determine those numbers, 

an ‘‘actual Enumeration’’ of the population of the United States must be 

conducted every 10 years. (U.S. Const. art. I, sec. 2, cl. 3.) The Congress 

has assigned responsibility for conducting the decennial census to the Secretary of Commerce (Secretary). (13 U.S.C. 141(a).) 

Once the Secretary, through the Director of the U.S. Census Bureau, takes 

the count, the President must carry out the apportionment of Representatives 

among the States. The Secretary prepares the ‘‘tabulation of total population 

by States . . . as required for the apportionment of Representatives,’’ and 

reports that tabulation to the President. (13 U.S.C. 141(b).) The President 

then sends a statement to the Congress showing ‘‘the whole number of 

persons in each State,’’ as ascertained under the census, and ‘‘the number 

of Representatives to which each State would be entitled under’’ the equal 

proportions apportionment method. (2 U.S.C. 2a(a).) The Clerk of the House 

of Representatives then transmits to each State a certification of the number 

of seats that the State receives under that apportionment. (2 U.S.C. 2a(b).) 

Finally, within 1 year of the decennial census date, the Secretary must 

also report to the Governor and officers or public bodies having responsibility 

for legislative apportionment or districting of each State the population 

tabulations to be used for apportioning districts within that State. (13 U.S.C. 

141(c).) 

At no point since our Nation’s Founding has a person’s immigration status 

alone served as a basis for excluding that person from the total population 

count used in apportionment. Before the Civil War and the abolition of 

slavery, the Constitution did not give equal weight to every person counted 

under the census. (U.S. Const. art. 1, sec. 2.) In accord with constitutional 

and statutory requirements, however, every apportionment since ratification 

of the Fourteenth Amendment has calculated each State’s share of Representatives based on ‘‘the whole number of persons in each State,’’ excluding 

only ‘‘Indians not taxed’’—an express constitutional exception that no longer 

has legal or practical effect. (U.S. Const. amend. XIV, sec. 2; 2 U.S.C. 2a(a).) 

The term ‘‘persons in each State’’ has always been understood to include 

every person whose usual place of residence was in that State as of the 


jbell on DSKJLSW7X2PROD with EXECORD6
7016 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents 

designated census date. (See, e.g., Act of Mar. 1, 1790, ch. 2, secs. 1, 

5, 1 Stat. 101, 103; Franklin v. Massachusetts, 505 U.S. 788, 804 (1992).) 

This unbroken practice has ensured that ‘‘the basis of representation in 

the House’’ is ‘‘every individual of the community at large.’’ (Evenwel v. 

Abbott, 136 S. Ct. 1120, 1127 (2016) (emphasis and quotation marks omitted).) 

And it reflects a sound policy judgment that the apportionment base be 

both clear and insulated against manipulation designed to affect the balance 

of power among the States. 

During the 2020 Census, the President announced a policy that broke from 

this long tradition. It aimed to produce a different apportionment base— 

one that would, to the maximum extent feasible, exclude persons who 

are not in a lawful immigration status. See Presidential Memorandum of 

July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census). This policy conflicted with the principle of equal 

representation enshrined in our Constitution, census statutes, and historical 

tradition. The policy further required the Census Bureau to inappropriately 

rely on records related to immigration status that were likely to be incomplete 

and inaccurate. 

Sec. 2. Policy. Both the Fourteenth Amendment of the United States Constitution and section 2a(a) of title 2, United States Code, require that the apportionment base of each State, for the purpose of the reapportionment of Representatives following the decennial census, include all persons whose usual place 

of residence was in that State as of the designated census date, regardless 

of their immigration status. These laws, affirmed by the executive branch’s 

longstanding historical practice, do not permit the exclusion of inhabitants 

of the United States from the apportionment base solely on the ground 

that they lack a lawful immigration status. Reflecting this legal background, 

and the values of equal representation and respect that the Constitution 

and laws embody, it is the policy of the United States that reapportionment 

shall be based on the total number of persons residing in the several States, 

without regard for immigration status. It is likewise essential that the census 

count be accurate and based on reliable and high-quality data. 

Sec. 3. Ensuring that the Apportionment Base and State-Level Tabulations 

Include All Inhabitants of Each State. In preparing the report to the President 

required under section 141(b) of title 13, United States Code, the Secretary 

shall report the tabulation of total population by State that reflects the 

whole number of persons whose usual residence was in each State as of 

the designated census date in section 141(a) of title 13, United States Code, 

without regard to immigration status. In addition, the Secretary shall use 

tabulations of population reflecting the whole number of persons whose 

usual residence was in each State as of the census date, without regard 

to immigration status, in reports provided to the Governor and officers 

or public bodies having responsibility for legislative apportionment or districting of each State under section 141(c) of title 13, United States Code. 

Sec. 4. Data Quality. The Secretary shall take all necessary steps, consistent 

with law, to ensure that the total population information presented to the 

President and to the States is accurate and complies with all applicable 

laws. 

Sec. 5. Revocation. Executive Order 13880 of July 11, 2019 (Collecting 

Information About Citizenship Status in Connection With the Decennial 

Census), and the Presidential Memorandum of July 21, 2020 (Excluding 

Illegal Aliens From the Apportionment Base Following the 2020 Census), 

are hereby revoked. 

Sec. 6. General Provisions. (a) Nothing in this order shall be construed 

to impair or otherwise affect: 

(i) the authority granted by law to an executive department or agency, 

or the head thereof; or 

(ii) the functions of the Director of the Office of Management and Budget 

relating to budgetary, administrative, or legislative proposals. 


jbell on DSKJLSW7X2PROD with EXECORD6
Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents 7017 

(b) This order shall be implemented consistent with applicable law and 

subject to the availability of appropriations. 

(c) This order is not intended to, and does not, create any right or benefit, 

substantive or procedural, enforceable at law or in equity by any party 

against the United States, its departments, agencies, or entities, its officers, 

employees, or agents, or any other person. 

THE WHITE HOUSE, 

January 20, 2021. 

[FR Doc. 2021–01755 

Filed 1–22–21; 11:15 am] 

Billing code 3295–F1–P 


jbell on DSKJLSW7X2PROD with EXECORD6BIDEN.EPS</GPH>