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Explainer: Trump’s Executive Order Rolling Back Census Protections
by Dan Vicuna
On his first day in office, President Trump rescinded a Biden Administration executive order so he could ignore the Constitution and make invisible in our democracy millions of people. The Biden executive order restored the constitutional requirement that U.S. House seats are apportioned among the states based on a count of every person living in the United States. Trump seeks to manipulate the census and congressional apportionment by removing noncitizens from the count. The U.S. census has counted all residents of the United States, including noncitizens, since 1790. Article I, section 2 of the Constitution stated that enslaved people were counted as 3/5 of a person until ratification of the Fourteenth Amendment in 1868. Debates concerning the drafting of the census section of the Constitution and the way the first census was conducted provide clear evidence that counting noncitizens for apportionment was the intent of the drafters.
Historical Context: Counting Noncitizens in the Census
Has the Census Always Included Noncitizens?
The framers of the Constitution considered early drafts of the census section that included the phrase “whole number of free citizens and inhabitants of every age, sex, and condition,” but rejected this and instead chose the more inclusive “whole number of free persons,” which made no reference to citizenship status.

The 1790 Census: Establishing the ‘Usual Residence’ Rule
Even the addition of a “foreigners not naturalized” question during the 1820 census had no bearing on the population count. Census takers were instructed to not double-count these individuals because they were already supposed to be included in the total population count.
The Fourteenth Amendment and Representation
Eliminating the 3/5 Clause: A Step Toward Equality
The 14th Amendment eliminated the shameful 3/5 clause and states: “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.” In 1940, an opinion by the attorney general determined that the “Indians not taxed” provision of the Fourteenth Amendment that excluded some Native Americans from the count was no longer operative. 39 Op. Att’y GEN. 518 (1940),
Debates on Voter-Based vs. Total Population Representation
Making residents of the United States invisible for the purposes of congressional apportionment would be a clear violation of the U.S. Constitution. Framers of the 14th Amendment addressed the question directly and reaffirmed the use of total population after explicitly rejecting a voters-or citizens-only count.
During consideration of one such amendment related to voters, Rep. Blaine of Maine stated: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot.” He added that a change to voter-based representation would be “an abandonment of one of the oldest and safest landmarks of the Constitution” and would “introduce a new principle in our Government, whose evil tendency and results no man can measure to-day”.

Representative Conkling’s Defense of Total Population Counts
What Has the Supreme Court Ruled About Total Population Representation?
Wesberry v. Sanders and the Constitutional Mandate

The use of total population was again affirmed in 1964 when the U.S. Supreme Court ruled in Wesberry v. Sanders, 376 U.S. 1 (1964) that the 14El Amendment requires states to redraw congressional districts to reflect updated census data. As the Court stated: “While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us.”
How Did Common Cause Challenge the Census Citizenship Question?
Common Cause has played a leading role in protecting the fundamental value that every person living in the United States should count in our democracy, regardless of citizenship status.
What Was the Real Reason for Adding the Census Citizenship Question?
In 2019, Common Cause obtained the digital work files of Thomas Hofeller, the late GOP redistricting guru. He analyzed data at the request of Trump Administration political appointees in the Census Bureau demonstrating that the addition of a citizenship question to the decennial census and the use of citizen-only data to draw voting maps would benefit “Republicans and non-Hispanic whites.” Between oral arguments in the Supreme Court case challenging the citizenship question and the release of the opinion, Common Cause gave this data to plaintiffs challenging the addition of the question. These files provided smoking gun evidence that the Trump Administration lied when it stated that the purpose of the citizenship question was to better enforce the Voting Rights Act. Plaintiffs informed the Court of this shocking new development in a late post-argument communication.

Why Did the Supreme Court Strike Down the Census Citizenship Question?
Efforts to Prevent Noncitizen Exclusion from Redistricting
When the Trump Administration’s effort to add a citizenship question to the census failed, it sought to provide citizenship information to states through administrative data to facilitate the exclusion of noncitizens from the redistricting count. Common Cause filed a lawsuit challenging this discriminatory effort. The court ruled that the case was not ripe because it was unknown how the Administration would implement its policy. The case was ultimately moot when the first Trump Administration ended prior to implementation.
Un amicus brief by historians of the census in Trump v. New York provided essential information about the debates described above.