13 U.S.C. § 141 (CENSUS)
§ 141. Population and other census information
(a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.
(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.
(c) The officers or public bodies having initial responsibility for the legislative apportionment or districting of each State may, not later than 3 years before the decennial census date, submit to the Secretary a plan identifying the geographic areas for which specific tabulations of population are desired. Each such plan shall be developed in accordance with criteria established by the Secretary, which he shall furnish to such officers or public bodies not later than April 1 of the fourth year preceding the decennial census date. Such criteria shall include requirements which assure that such plan shall be developed in a nonpartisan manner. Should the Secretary find that a plan submitted by such officers or public bodies does not meet the criteria established by him, he shall consult to the extent necessary with such officers or public bodies in order to achieve the alterations in such plan that he deems necessary to bring it into accord with such criteria. Any issues with respect to such plan remaining unresolved after such consultation shall be resolved by the Secretary, and in all cases he shall have final authority for determining the geographic format of such plan. Tabulations of population for the areas identified in any plan approved by the Secretary shall be completed by him as expeditiously as possible after the decennial census date and reported to the Governor of the State involved and to the officers or public bodies having responsibility for legislative apportionment or districting of such State, except that such tabulations of population of each State requesting a tabulation plan, and basic tabulations of population of each other State, shall, in any event, be completed, reported, and transmitted to each respective State within one year after the decennial census date.
(d) Without regard to subsections (a), (b), and (c) of this section, the Secretary, in the year 1985 and every 10 years thereafter, shall conduct a mid-decade census of population in such form and content as he may determine, including the use of sampling procedures and special surveys, taking into account the extent to which information to be obtained from such census will serve in lieu of information collected annually or less frequently in surveys or other statistical studies. The census shall be taken as of the first day of April of each such year, which date shall be known as the “mid-decade census date”.
(e)
(1) If—
(A) in the administration of any program established by or under Federal law which provides benefits to State or local governments or to other recipients, eligibility for or the amount of such benefits would (without regard to this paragraph) be determined by taking into account data obtained in the most recent decennial census, and
(B) comparable data is obtained in a mid-decade census conducted after such decennial census,
then in the determination of such eligibility or amount of benefits the most recent data available from either the mid-decade or decennial census shall be used.
(2) Information obtained in any mid-decade census shall not be used for apportionment of Representatives in Congress among the several States, nor shall such information be used in prescribing congressional districts.
(f) With respect to each decennial and mid-decade census conducted under subsection (a) or (d) of this section, the Secretary shall submit to the committees of Congress having legislative jurisdiction over the census—
(1) not later than 3 years before the appropriate census date, a report containing the Secretary’s determination of the subjects proposed to be included, and the types of information to be compiled, in such census;
(2) not later than 2 years before the appropriate census date, a report containing the Secretary’s determination of the questions proposed to be included in such census; and
(3) after submission of a report under paragraph (1) or (2) of this subsection and before the appropriate census date, if the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, a report containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be modified.
(g) As used in this section, “census of population” means a census of population, housing, and matters relating to population and housing.
(Aug. 31, 1954, ch. 1158, 68 Stat. 1019; Pub. L. 85–207, § 9, Aug. 28, 1957, 71 Stat. 483; Pub. L. 94–171, §§ 1, 2(a), Dec. 23, 1975, 89 Stat. 1023, 1024; Pub. L. 94–521, § 7(a), Oct. 17, 1976, 90 Stat. 2461.)
heading: Historical and Revision Notes
text: Based on title 13, U.S.C., 1952 ed., § 201 (June 18, 1929, ch. 28, § 1, 46 Stat. 21; May 17, 1932, ch. 190, 47 Stat. 158).
References to the Secretary, meaning the Secretary of Commerce, were substituted for references to the Director of the Census, to conform with 1950 Reorganization Plan No. 5, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263. See Revision Note to section 4 of this title.
The provision for taking the censuses in “1930 and every ten years thereafter” was changed to “1960 and every ten years thereafter” since the censuses for the years 1930, 1940 and 1950 have been completed.
The requirement that decennial censuses of “distribution” and “mines” should also be taken was omitted as superseded by section 121 of title 13, U.S.C., 1952 ed. (enacted in 1948), the provisions of which were carried into subchapter I of this chapter.
Section 1442 of title 42, U.S.C., 1952 ed., the Public Health and Welfare (which section has been transferred in its entirety to this revised title), made all provisions of chapter 4 of title 13, U.S.C., 1952 ed., applicable to the housing censuses provided for in such section. However, section 201 of such title 13 (which section was a part of such chapter 4), which, as indicated above, has been carried into this revised section, could not, except, possibly, for the provisions thereof relating to the territorial scope of the censuses and to the census duties of the governors of Guam, Samoa, the Virgin Islands, and the Canal Zone, have any relevancy to such housing censuses, and such section 1442 of title 42, U.S.C., 1952 ed., contained its own provisions relating to territorial scope of the housing censuses. Therefore the provisions of this revised section have not been made so applicable.
Changes were made in phraseology.
heading: Editorial Notes
heading: Amendments
text: 1976—Pub. L. 94–521 substituted “Population and other census information” for “Population, unemployment, and housing” in section catchline, without reference to amendment of catchline by Pub. L. 94–171.
Subsec. (a). Pub. L. 94–521 substituted “1980” for “1960” and “decennial census of population” for “census of population, unemployment, and housing (including utilities and equipment)”, inserted “of such year” after “April”, substituted “which date shall be known as the decennial census date” for “which shall be known as the census date”, and inserted provisions authorizing the Secretary to take the decennial census in whatever form and content he determines, using sampling procedures and special surveys, and authorizing him to obtain other such census information as is necessary, in connection with the decennial census.
Subsec. (b). Pub. L. 94–521 inserted “under subsection (a) of this section” after “population by States”, inserted “in Congress among the several States” after “Representatives”, and substituted “9 months after the census date” for “eight months of the census date”.
Subsec. (c). Pub. L. 94–521 substituted “the decennial census date” for “the census date” wherever appearing.
Subsecs. (d) to (g). Pub. L. 94–521 added subsecs. (d) to (g).
1975—Pub. L. 94–171, § 2(a), inserted “; tabulation for legislative apportionment” in section catchline.
Subsec. (c). Pub. L. 94–171, § 1, added subsec. (c).
1957—Pub. L. 85–207 substituted “Population, unemployment, and housing” for “Population, agriculture, irrigation, drainage, and unemployment; territory excluded” in section catchline; inserted in text housing census provisions, struck out census coverage of agriculture, irrigation, and drainage and geographical provisions, and designated existing provisions as so amended as subsec. (a); and added subsec. (b). Census of agriculture, irrigation, and drainage and the geographical provisions are covered by sections 142 and 191 of this title.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 1976 Amendment
text: Amendment by Pub. L. 94–521 effective Oct. 17, 1976, see section 17 of Pub. L. 94–521, set out as a note under section 1 of this title.
heading: Statistical Sampling or Adjustment in Decennial Enumeration of Population
text: Pub. L. 105–119, title II, § 209, Nov. 26, 1997, 111 Stat. 2480, provided that:
“(a) Congress finds that—
“(1) it is the constitutional duty of the Congress to ensure that the decennial enumeration of the population is conducted in a manner consistent with the Constitution and laws of the United States;
“(2) the sole constitutional purpose of the decennial enumeration of the population is the apportionment of Representatives in Congress among the several States;
“(3) section 2 of the 14th article of amendment to the Constitution clearly states that Representatives are to be ‘apportioned among the several States according to their respective numbers, counting the whole number of persons in each State’;
“(4) article I, section 2, clause 3 of the Constitution clearly requires an ‘actual Enumeration’ of the population, and section 195 of title 13, United States Code, clearly provides ‘Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as “sampling” in carrying out the provisions of this title.’;
“(5) the decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs;
“(6) it is essential that the decennial enumeration of the population be as accurate as possible, consistent with the Constitution and laws of the United States;
“(7) the use of statistical sampling or statistical adjustment in conjunction with an actual enumeration to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstitutional census;
“(8) the decennial enumeration of the population is a complex and vast undertaking, and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or laws of the United States, it would be impracticable for the States to obtain, and the courts of the United States to provide, meaningful relief after such enumeration has been conducted; and
“(9) Congress is committed to providing the level of funding that is required to perform the entire range of constitutional census activities, with a particular emphasis on accurately enumerating all individuals who have historically been undercounted, and toward this end, Congress expects—
“(A) aggressive and innovative promotion and outreach campaigns in hard-to-count communities;
“(B) the hiring of enumerators from within those communities;
“(C) continued cooperation with local government on address list development; and
“(D) maximized census employment opportunities for individuals seeking to make the transition from welfare to work.
“(b) Any person aggrieved by the use of any statistical method in violation of the Constitution or any provision of law (other than this Act [see Tables for classification]), in connection with the 2000 or any later decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress, may in a civil action obtain declaratory, injunctive, and any other appropriate relief against the use of such method.
“(c) For purposes of this section—
“(1) the use of any statistical method as part of a dress rehearsal or other simulation of a census in preparation for the use of such method, in a decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress shall be considered the use of such method in connection with that census; and
“(2) the report ordered by title VIII of Public Law 105–18 [111 Stat. 217] and the Census 2000 Operational Plan shall be deemed to constitute final agency action regarding the use of statistical methods in the 2000 decennial census, thus making the question of their use in such census sufficiently concrete and final to now be reviewable in a judicial proceeding.
“(d) For purposes of this section, an aggrieved person (described in subsection (b)) includes—
“(1) any resident of a State whose congressional representation or district could be changed as a result of the use of a statistical method challenged in the civil action;
“(2) any Representative or Senator in Congress; and
“(3) either House of Congress.
“(e)
(1) Any action brought under this section shall be heard and determined by a district court of three judges in accordance with section 2284 of title 28, United States Code. The chief judge of the United States court of appeals for each circuit shall, to the extent practicable and consistent with the avoidance of unnecessary delay, consolidate, for all purposes, in one district court within that circuit, all actions pending in that circuit under this section. Any party to an action under this section shall be precluded from seeking any consolidation of that action other than is provided in this paragraph. In selecting the district court in which to consolidate such actions, the chief judge shall consider the convenience of the parties and witnesses and efficient conduct of such actions. Any final order or injunction of a United States district court that is issued pursuant to an action brought under this section shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after such order is entered; and the jurisdictional statement shall be filed within 30 days after such order is entered. No stay of an order issued pursuant to an action brought under this section may be issued by a single Justice of the Supreme Court.
“(2) It shall be the duty of a United States district court hearing an action brought under this section and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any such matter.
“(f) Any agency or entity within the executive branch having authority with respect to the carrying out of a decennial census may in a civil action obtain a declaratory judgment respecting whether or not the use of a statistical method, in connection with such census, to determine the population for the purposes of the apportionment or redistricting of Members in Congress is forbidden by the Constitution and laws of the United States.
“(g) The Speaker of the House of Representatives or the Speaker’s designee or designees may commence or join in a civil action, for and on behalf of the House of Representatives, under any applicable law, to prevent the use of any statistical method, in connection with the decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress. It shall be the duty of the Office of the General Counsel of the House of Representatives to represent the House in such civil action, according to the directions of the Speaker. The Office of the General Counsel of the House of Representatives may employ the services of outside counsel and other experts for this purpose.
“(h) For purposes of this section and section 210 [formerly set out below]—
“(1) the term ‘statistical method’ means an activity related to the design, planning, testing, or implementation of the use of representative sampling, or any other statistical procedure, including statistical adjustment, to add or subtract counts to or from the enumeration of the population as a result of statistical inference; and
“(2) the term ‘census’ or ‘decennial census’ means a decennial enumeration of the population.
“(i) Nothing in this Act shall be construed to authorize the use of any statistical method, in connection with a decennial census, for the apportionment or redistricting of Members in Congress.
“(j) Sufficient funds appropriated under this Act or under any other Act for purposes of the 2000 decennial census shall be used by the Bureau of the Census to plan, test, and become prepared to implement a 2000 decennial census, without using statistical methods, which shall result in the percentage of the total population actually enumerated being as close to 100 percent as possible. In both the 2000 decennial census, and any dress rehearsal or other simulation made in preparation for the 2000 decennial census, the number of persons enumerated without using statistical methods must be publicly available for all levels of census geography which are being released by the Bureau of the Census for: (1) all data releases before January 1, 2001; (2) the data contained in the 2000 decennial census Public Law 94–171 [amending this section] data file released for use in redistricting; (3) the Summary Tabulation File One (STF–1) for the 2000 decennial census; and (4) the official populations of the States transmitted from the Secretary of Commerce through the President to the Clerk of the House used to reapportion the districts of the House among the States as a result of the 2000 decennial census. Simultaneously with any other release or reporting of any of the information described in the preceding sentence through other means, such information shall be made available to the public on the Internet. These files of the Bureau of the Census shall be available concurrently to the release of the original files to the same recipients, on identical media, and at a comparable price. They shall contain the number of persons enumerated without using statistical methods and any additions or subtractions thereto. These files shall be based on data gathered and generated by the Bureau of the Census in its official capacity.
“(k) This section shall apply in fiscal year 1998 and succeeding fiscal years.”
heading: Census Monitoring Board
text: Pub. L. 105–119, title II, § 210(a)–(j), Nov. 26, 1997, 111 Stat. 2483–2487, established the Census Monitoring Board to observe and monitor all aspects of the preparation and implementation of the 2000 decennial census, described the membership and duties of the Board, and provided for its termination on Sept. 30, 2001.
heading: Census Data on Grandparents as Primary Caregivers for Their Grandchildren
text: Pub. L. 104–193, title I, § 105, Aug. 22, 1996, 110 Stat. 2163, provided that:
“(a) In General.—
Not later than 90 days after the date of the enactment of this Act [Aug. 22, 1996], the Secretary of Commerce, in carrying out section 141 of title 13, United States Code, shall expand the data collection efforts of the Bureau of the Census (in this section referred to as the ‘Bureau’) to enable the Bureau to collect statistically significant data, in connection with its decennial census and its mid-decade census, concerning the growing trend of grandparents who are the primary caregivers for their grandchildren.
“(b) Expanded Census Question.—
In carrying out subsection (a), the Secretary of Commerce shall expand the Bureau’s census question that details households which include both grandparents and their grandchildren. The expanded question shall be formulated to distinguish between the following households:
“(1) A household in which a grandparent temporarily provides a home for a grandchild for a period of weeks or months during periods of parental distress.
“(2) A household in which a grandparent provides a home for a grandchild and serves as the primary caregiver for the grandchild.”
heading: Decennial Census Improvement Act of 1991
text: Pub. L. 102–135, Oct. 24, 1991, 105 Stat. 635, known as the Decennial Census Improvement Act of 1991, provided that the Secretary of Commerce was to contract with the National Academy of Sciences for a study of the means by which the Government could achieve the most accurate population count possible and ways for the Government to collect other demographic and housing data, and that the Academy was to submit to the Secretary and to committees of Congress an interim report and, within 36 months after the date of the contract, a final report on the study.
heading: Study of Counting of Homeless for National Census
text: Pub. L. 101–645, title IV, § 402, Nov. 29, 1990, 104 Stat. 4723, provided that not later than 1 year after Nov. 29, 1990, the General Accounting Office was to conduct a study of the methodology and procedures used by the Bureau of the Census in counting the number of homeless persons for the most recent decennial census conducted pursuant to this title, to determine the accuracy of such count, and report to the Congress the results of that study.
heading: Monitoring Economic Progress of Rural America
text: Pub. L. 101–624, title XXIII, § 2382, Nov. 28, 1990, 104 Stat. 4050, provided that Director of Bureau of the Census was to expand data collection efforts of Bureau to enable it to collect statistically significant data concerning changing economic condition of rural counties and communities in United States, including data on rural employment, poverty, income, and other information concerning rural labor force, and authorized to be appropriated $1,000,000 for each fiscal year for such efforts, prior to repeal by Pub. L. 104–127, title VII, § 707, Apr. 4, 1996, 110 Stat. 1112.
heading: Americans of Spanish Origin or Descent; Study for Development of Creditable Estimates in Future Censuses
text: Pub. L. 94–311, § 4, June 16, 1976, 90 Stat. 688, provided that: “The Department of Commerce, in cooperation with appropriate Federal, State and local agencies and various population study groups and experts, shall immediately undertake a study to determine what steps would be necessary for developing creditable estimates of undercounts of Americans of Spanish origin or descent in future censuses.”
heading: Needs and Concerns of Spanish-Origin Population; Use of Spanish Language Questionnaires and Bilingual Enumerators
text: Pub. L. 94–311, § 5, June 16, 1976, 90 Stat. 689, provided that: “The Secretary of Commerce shall ensure that, in the Bureau of the Census data-collection activities, the needs and concerns of the Spanish-origin population are given full recognition through the use of Spanish language questionnaires, bilingual enumerators, and other such methods as deemed appropriate by the Secretary.”
heading: Executive Documents
heading: Ex. Ord. No. 13880. Collecting Information About Citizenship Status in Connection With the Decennial Census
text: Ex. Ord. No. 13880, July 11, 2019, 84 F.R. 33821, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Purpose. In Department of Commerce v. New York, No. 18–966 (June 27, 2019), the Supreme Court held that the Department of Commerce (Department) may, as a general matter, lawfully include a question inquiring about citizenship status on the decennial census and, more specifically, declined to hold that the Secretary of Commerce’s decision to include such a question on the 2020 decennial census was “substantively invalid.” That ruling was not surprising, given that every decennial census from 1820 to 2000 (with the single exception of 1840) asked at least some respondents about their citizenship status or place of birth. In addition, the Census Bureau has inquired since 2005 about citizenship on the American Community Survey—a separate questionnaire sent annually to about 2.5 percent of households.
The Court determined, however, that the explanation the Department had provided for including such a question on the census was, in the circumstances of that case, insufficient to support the Department’s decision. I disagree with the Court’s ruling, because I believe that the Department’s decision was fully supported by the rationale presented on the record before the Supreme Court.
The Court’s ruling, however, has now made it impossible, as a practical matter, to include a citizenship question on the 2020 decennial census questionnaire. After examining every possible alternative, the Attorney General and the Secretary of Commerce have informed me that the logistics and timing for carrying out the census, combined with delays from continuing litigation, leave no practical mechanism for including the question on the 2020 decennial census.
Nevertheless, we shall ensure that accurate citizenship data is compiled in connection with the census by other means. To achieve that goal, I have determined that it is imperative that all executive departments and agencies (agencies) provide the Department the maximum assistance permissible, consistent with law, in determining the number of citizens and non-citizens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective. When the Secretary of Commerce decided to include the citizenship question on the census, he determined that such a question, in combination with administrative records, would provide the most accurate and complete data. At that time, the Census Bureau had determined based on experience that administrative records to which it had access would enable it to determine citizenship status for approximately 90 percent of the population. At that point, the benefits of using administrative records were limited because the Department had not yet been able to access several additional important sets of records with critical information on citizenship. Under the Secretary of Commerce’s decision memorandum directing the Census Bureau “to further enhance its administrative record data sets” and “to obtain as many additional Federal and state administrative records as possible,” the Department has sought access to several such sets of records maintained by other agencies, but it remains in negotiations to secure access.
The executive action I am taking today will ensure that the Department will have access to all available records in time for use in conjunction with the census.
Therefore, to eliminate delays and uncertainty, and to resolve any doubt about the duty of agencies to share data promptly with the Department, I am hereby ordering all agencies to share information requested by the Department to the maximum extent permissible under law.
Access to the additional data identified in section 3 of this order will ensure that administrative records provide more accurate and complete citizenship data than was previously available.
I am also ordering the establishment of an interagency working group to improve access to administrative records, with a goal of making available to the Department administrative records showing citizenship data for 100 percent of the population. And I am ordering the Secretary of Commerce to consider mechanisms for ensuring that the Department’s existing data-gathering efforts expand the collection of citizenship data in the future.
Finally, I am directing the Department to strengthen its efforts, consistent with law, to obtain State administrative records concerning citizenship.
Ensuring that the Department has available the best data on citizenship that administrative records can provide, consistent with law, is important for multiple reasons, including the following.
First, data on the number of citizens and aliens in the country is needed to help us understand the effects of immigration on our country and to inform policymakers considering basic decisions about immigration policy. The Census Bureau has long maintained that citizenship data is one of the statistics that is “essential for agencies and policy makers setting and evaluating immigration policies and laws.”
Today, an accurate understanding of the number of citizens and the number of aliens in the country is central to any effort to reevaluate immigration policy. The United States has not fundamentally restructured its immigration system since 1965. I have explained many times that our outdated immigration laws no longer meet contemporary needs. My Administration is committed to modernizing immigration laws and policies, but the effort to undertake any fundamental reevaluation of immigration policy is hampered when we do not have the most complete data about the number of citizens and non-citizens in the country. If we are to undertake a genuine overhaul of our immigration laws and evaluate policies for encouraging the assimilation of immigrants, one of the basic informational building blocks we should know is how many non-citizens there are in the country.
Second, the lack of complete data on numbers of citizens and aliens hinders the Federal Government’s ability to implement specific programs and to evaluate policy proposals for changes in those programs. For example, the lack of such data limits our ability to evaluate policies concerning certain public benefits programs. It remains the immigration policy of the United States, as embodied in statutes passed by the Congress, that “aliens within the Nation’s borders [should] not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations” and that “the availability of public benefits [should] not constitute an incentive for immigration to the United States” (8 U.S.C. 1601(2)). The Congress has identified compelling Government interests in restricting public benefits “in order to assure that aliens be self-reliant in accordance with national immigration policy” and “to remove the incentive for illegal immigration provided by the availability of public benefits” (8 U.S.C. 1601(5), (6)).
Accordingly, aliens are restricted from eligibility for many public benefits. With limited exceptions, aliens are ineligible to receive supplemental security income or food stamps (8 U.S.C. 1612(a)). Aliens who are “qualified aliens”—that is, lawful permanent residents, persons granted asylum, and certain other legal immigrants—are, with limited exceptions, ineligible to receive benefits through Temporary Assistance for Needy Families, Medicaid, and State Children’s Health Insurance Program for 5 years after entry into the United States (8 U.S.C. 1613(a)). Aliens who are not “qualified aliens,” such as those unlawfully present, are generally ineligible for Federal benefits and for State and local benefits (8 U.S.C. 1611(a), 1621(a)).
The lack of accurate information about the total citizen population makes it difficult to plan for annual expenditures on certain benefits programs. And the lack of accurate and complete data concerning the alien population makes it extremely difficult to evaluate the potential effects of proposals to alter the eligibility rules for public benefits.
Third, data identifying citizens will help the Federal Government generate a more reliable count of the unauthorized alien population in the country. Data tabulating both the overall population and the citizen population could be combined with records of aliens lawfully present in the country to generate an estimate of the aggregate number of aliens unlawfully present in each State. Currently, the Department of Homeland Security generates an annual estimate of the number of illegal aliens residing in the United States, but its usefulness is limited by the deficiencies of the citizenship data collected through the American Community Survey alone, which includes substantial margins of error because it is distributed to such a small percentage of the population.
Academic researchers have also been unable to develop useful and reliable numbers of our illegal alien population using currently available data. A 2018 study by researchers at Yale University estimated that the illegal alien population totaled between 16.2 million and 29.5 million. Its modeling put the likely number at about double the conventional estimate. The fact is that we simply do not know how many citizens, non-citizens, and illegal aliens are living in the United States.
Accurate and complete data on the illegal alien population would be useful for the Federal Government in evaluating many policy proposals. When Members of Congress propose various forms of protected status for classes of unauthorized immigrants, for example, the full implications of such proposals can be properly evaluated only with accurate information about the overall number of unauthorized aliens potentially at issue. Similarly, such information is needed to inform debate about legislative proposals to enhance enforcement of immigration laws and effectuate duly issued removal orders.
The Federal Government’s need for a more accurate count of illegal aliens in the country is only made more acute by the recent massive influx of illegal immigrants at our southern border. In Proclamation 9822 of November 9, 2018 (Addressing Mass Migration Through the Southern Border of the United States) [83 F.R. 57661], I explained that our immigration and asylum system remains in crisis as a consequence of the mass migration of aliens across our southern border. As a result of our broken asylum laws, hundreds of thousands of aliens who entered the country illegally have been released into the interior of the United States pending the outcome of their removal proceedings. But because of the massive backlog of cases, hearing dates are sometimes set years in the future and the adjudication process often takes years to complete. Aliens not in custody routinely fail to appear in court and, even if they do appear, fail to comply with removal orders. There are more than 1 million illegal aliens who have been issued final removal orders from immigration judges and yet remain at-large in the United States.
Efforts to find solutions that address the immense number of unauthorized aliens living in our country should start with accurate information that allows us to understand the true scope of the problem.
Fourth, it may be open to States to design State and local legislative districts based on the population of voter-eligible citizens. In Evenwel v. Abbott, 136 S. Ct. 1120 (2016), the Supreme Court left open the question whether “States may draw districts to equalize voter-eligible population rather than total population.” Some States, such as Texas, have argued that “jurisdictions may, consistent with the Equal Protection Clause, design districts using any population baseline—including total population and voter-eligible population—so long as the choice is rational and not invidiously discriminatory”. Some courts, based on Supreme Court precedent, have agreed that State districting plans may exclude individuals who are ineligible to vote. Whether that approach is permissible will be resolved when a State actually proposes a districting plan based on the voter-eligible population. But because eligibility to vote depends in part on citizenship, States could more effectively exercise this option with a more accurate and complete count of the citizen population.
The Department has said that if the officers or public bodies having initial responsibility for the legislative districting in each State indicate a need for tabulations of citizenship data, the Census Bureau will make a design change to make such information available. I understand that some State officials are interested in such data for districting purposes. This order will assist the Department in securing the most accurate and complete citizenship data so that it can respond to such requests from the States.
To be clear, generating accurate data concerning the total number of citizens, non-citizens, and illegal aliens in the country has nothing to do with enforcing immigration laws against particular individuals. It is important, instead, for making broad policy determinations. Information obtained by the Department in connection with the census through requests for administrative records under 13 U.S.C. 6 shall be used solely to produce statistics and is subject to confidentiality protections under Title 13 of the United States Code. Information subject to confidentiality protections under Title 13 may not, and shall not, be used to bring immigration enforcement actions against particular individuals. Under my Administration, the data confidentiality protections in Title 13 shall be fully respected.
Sec. 2. Policy. It is the policy of the United States to develop complete and accurate data on the number of citizens, non-citizens, and illegal aliens in the country. Such data is necessary to understand the effects of immigration on the country, and to inform policymakers in setting and evaluating immigration policies and laws, including evaluating proposals to address the current crisis in illegal immigration.
Sec. 3. Assistance to the Department of Commerce and Maximizing Citizenship Data. (a) All agencies shall promptly provide the Department the maximum assistance permissible, consistent with law, in determining the number of citizens, non-citizens, and illegal aliens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective. In particular, the following agencies shall examine relevant legal authorities and, to the maximum extent consistent with law, provide access to the following records:
(i) Department of Homeland Security, United States Citizenship and Immigration Services—National-level file of Lawful Permanent Residents, Naturalizations;
(ii) Department of Homeland Security, Immigration and Customs Enforcement—F1 & M1 Nonimmigrant Visas;
(iii) Department of Homeland Security—National-level file of Customs and Border Arrival/Departure transaction data;
(iv) Department of Homeland Security and Department of State, Worldwide Refugee and Asylum Processing System—Refugee and Asylum visas;
(v) Department of State—National-level passport application data;
(vi) Social Security Administration—Master Beneficiary Records; and
(vii) Department of Health and Human Services—CMS Medicaid and CHIP Information System.
(b) The Secretary of Commerce shall instruct the Director of the Census Bureau to establish an interagency working group to coordinate efforts, consistent with law, to maximize the availability of administrative records in connection with the census, with the goal of obtaining administrative records that can help establish citizenship status for 100 percent of the population. The Director of the Census Bureau shall chair the working group, and the head of each agency shall designate a representative to the working group upon request from the working group chair.
(c) To ensure that the Federal Government continues to collect the most accurate information available concerning citizenship going forward, the Secretary of Commerce shall consider initiating any administrative process necessary to include a citizenship question on the 2030 decennial census and to consider any regulatory changes necessary to ensure that citizenship data is collected in any other surveys and data-gathering efforts conducted by the Census Bureau, including the American Community Survey. The Secretary of Commerce shall also consider expanding the distribution of the American Community Survey, which currently reaches approximately 2.5 percent of households, to secure better citizenship data.
(d) The Department shall strengthen its efforts, consistent with law, to gain access to relevant State administrative records.
Sec. 4. 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.
(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.
Donald J. Trump.
heading: Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census
text: Memorandum of President of the United States, July 21, 2020, 85 F.R. 44679, provided:
Memorandum for the Secretary of Commerce
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Background. In order to apportion Representatives among the States, the Constitution requires the enumeration of the population of the United States every 10 years and grants the Congress the power and discretion to direct the manner in which this decennial census is conducted (U.S. Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of Commerce (the Secretary) with directing the conduct of the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). By the direction of the Congress, the Secretary then transmits to the President the report of his tabulation of total population for the apportionment of Representatives in the Congress (13 U.S.C. 141(b)). The President, by law, makes the final determination regarding the “whole number of persons in each State,” which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided that it is “the President’s personal transmittal of the report to Congress” that “settles the apportionment” of Representatives among the States, and the President’s discretion to settle the apportionment is more than “ceremonial or ministerial” and is essential “to the integrity of the process” (Franklin v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the “persons in each State, excluding Indians not taxed,” to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term “persons in each State” has been interpreted to mean that only the “inhabitants” of each State should be included. Determining which persons should be considered “inhabitants” for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are “persons” who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically “in” a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an “inhabitant” includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.
In Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census) [set out above], I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country. As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the purpose of conducting the apportionment, and we intended to examine that issue.
Sec. 2. Policy. For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives. Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.
I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law.
Sec. 3. Excluding Illegal Aliens from the Apportionment Base. In preparing his report to the President under section 141(b) of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy set forth in section 2 of this memorandum. The Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 FR 5525 (Feb. 8, 2018).
Sec. 4. General Provisions. (a) Nothing in this memorandum 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.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum 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.
Donald J. Trump.